The Plaintiffs also challenge the Defendants' practice of racial,pregnancy and national origin discrimination and retaliation inthe terms of the Plaintiffs' employment, in violation of the NewYork State Human Rights Law.

163rd Street Improvement Council, Inc., is a New York domesticnot-for-profit corporation headquartered in Bronx, New York. ADPTotalsource, Inc., and ADP Totalsource I, Inc., are foreignbusiness corporations organized in Florida but authorized to dobusiness in New York. Cassandra Perry had authority to hire andfire the Plaintiffs, set their rates of pay, set their workschedules and maintain employment records.

935 8th Avenue Bakery Corp., d/b/a Bread Factory Cafe, is a NewYork domestic business corporation. Bread Factory is a busy andpopular restaurant located in the Hell's Kitchen neighborhood ofManhattan and is open 24 hours per day, seven days per week. TheIndividual Defendants and the Doe Defendants are shareholders ofBread Factory.

ADVANCE STORES: Removed "Brammer" Suit to S.D. West Virginia------------------------------------------------------------The purported class action lawsuit styled Brammer v. AdvanceStores Company, Inc., Case No. 13-C-130, was removed from theCircuit Court of Lincoln County to the United States DistrictCourt for the Southern District of West Virginia (Charleston).The District Court Clerk assigned Case No. 2:13-cv-33955 to theproceeding.

AIC LTD: Gowling Discusses Supreme Court Class Action Ruling------------------------------------------------------------Scott Kugler, Esq. -- scott.kugler@gowlings.com -- Erin Farrell,Esq. -- erin.farrell@gowlings.com -- and Josh Hane, Esq. atGowling Lafleur Henderson LLP report that in dismissing an appealfrom the decision of the Ontario Court of Appeal in AIC v. Fischeron December 12, 2013, the Supreme Court of Canada revisited thepreferable procedure aspect of the certification test for classproceedings. The decision focused on access to justice, andstates that courts must consider both the costs and the benefitsof a class action as compared to an alternative procedure indeciding which is preferable. This requires the court to considerwhether a class action or an alternative process would be bestsuited to offer (i) a fair process to resolve the plaintiffs'claims, and (ii) access to a just and effective remedy if theclaims are successful.

Case History

The action was commenced by investors who claimed to have sufferedlosses as a result of "market timing" activities that allegedlyoccurred in certain mutual funds. The defendants were the mutualfund managers who were alleged to have allowed market timing tooccur.

The plaintiffs led evidence at the certification motion that theamounts received pursuant to the regulatory settlements did notfully compensate them for their losses and they argued that theyshould be entitled to pursue further recovery through the courts.The defendants took the position that the plaintiffs had beenadequately compensated through the regulatory process and did notrequire a class action to obtain access to justice.

Preferable Procedure Analysis

The Supreme Court's analysis focused on section 5(1)(d) of theOntario Class Proceedings Act, which requires the court todetermine whether a class proceeding is the preferable procedurefor the resolution of the common issues.

The Court confirmed that the preferable procedure analysisrequires the court to compare the class action against othermethods of resolving the claim and that this analysis must beconsidered through the lens of the three principal goals of classactions: behavior modification, judicial economy and access tojustice. The Supreme Court noted, however, that the focus shouldremain on preferability as the plaintiff does not need to provethat the class action will actually achieve all three of the goalsof class actions.

Access to justice was held to have two interconnected dimensions:(i) process, which is concerned with whether plaintiffs "haveaccess to a fair process to resolve their claims"; and (ii)substance, which is concerned with whether plaintiffs "willreceive a just and effective remedy for their claims ifestablished".

As the Supreme Court noted in Hollick v. Toronto (City) 2001 SCC68 and reiterated in this case, a class action will serve the goalof access to justice if: "(1) there are access to justice concernsthat a class action could address; and (2) these concerns remaineven when alternative avenues of redress are considered." Afive-question framework for analysis of these issues was createdby the Supreme Court:

1. What are the barriers to access to justice?

There are various barriers to access to justice, the most commonof which is economic. However, the Supreme Court recognized thatthere are also psychological and social barriers to access tojustice including ignorance of the availability of substantivelegal rights, ignorance of the fact that damages have occurred,limited language skills, age, frail emotional or physical state,fear of reprisal by the defendant, or alienation from the legalsystem as a result of negative experiences with it.

2. What is the potential of the class proceeding to address thebarriers?

This part of the analysis considers the relative ability of theclass action, as compared to any other alternative mechanism, toaddress the barriers to access to justice that are present in thecase at issue. While a class action will provide access to thecourts for plaintiffs, the Supreme Court was careful to note thatthis only guaranteed a fair process, but not necessarilysubstantive results, which is an important dimension of access tojustice.

3. What are the alternatives to the class proceedings?

Unlike the US class action process, the process in Canada allowsthe court to consider procedures both within the court system(e.g. individual actions, joinder, test cases, consolidation) andoutside the court system.

4. To what extent do the alternatives address the relevantbarriers to access to justice?

Once the alternatives to a class action have been identified, theymust be assessed to determine the extent to which they address thebarriers to access to justice that exist in the case. The SupremeCourt noted that while the court process is not necessarily the"gold standard for fair and effective dispute resolution",alternatives must provide suitable procedural rights.

5. How do the proceedings compare?

This is the stage of the analysis where the court must determinewhether the class action is the "preferable procedure to addressthe specific procedural and substantive access to justiceconcerns" in the case. This should also involve, to the extentpossible, a consideration of both the costs and the benefits ofthe class action as compared to the alternative procedure.Evidentiary Standard

The Supreme Court held that the five questions set out above "mustbe addressed within the confines of the certification process; thecourt cannot engage in a detailed assessment of the merits orlikely outcome of the class action or any alternatives to it". Italso confirmed that the applicable evidentiary standard is "somebasis in fact" and that the court will not be required to resolveconflicting facts and evidence as the certification stage.

While the Supreme Court did not define what "some basis in fact"means, it did cite the decision of the Ontario Court of Appeal inMcCracken v. Canadian National Railway Co., 2012 ONCA 445 that"the use of the word "some" conveys the meaning that theevidentiary record need not be exhaustive, and certainly not arecord upon which the merits will be argued".

The Supreme Court also took the opportunity to emphasize that theevidentiary burden on the plaintiffs should not lead to a "morefulsome assessment of contested facts going to the merits of thecase". The Supreme Court cited with approval from Cloud v. Canada(Attorney General) 73 OR (3d) 401 (C.A.) in which the OntarioCourt of Appeal held that the some basis in fact standard "doesnot entail any assessment of the merits at the certificationstage".

Burden of Proof

The plaintiff has the burden of proof to demonstrate that a classaction satisfies the preferable procedure criterion forcertification. The plaintiff must prove that a class action ispreferable to all other litigation alternatives. However, thedefendant has the evidentiary burden of proof with respect to non-litigation alternatives.

Outcome

The Supreme Court held that a class action made it economicallypossible for the plaintiffs to advance very small claims and thatthere was no realistic litigation alternative. The regulatoryproceedings had provided a substantive remedy for the plaintiffsbut it could not be concluded within the framework of acertification motion whether investors had been properlycompensated by the regulatory settlement. This was due, in part,to the fact that the methodology used to calculate the amountspayable in the regulatory proceedings was confidential and therehad been no investor participation in the regulatory settlementprocess. Consequently, in upholding the decision of the OntarioCourt of Appeal the Supreme Court held that access to justicewould be best served by a class action.

Conclusion

This decision sets out a very detailed framework for the analysisof access to justice issues within the preferable procedureanalysis. It also reinforces the "some basis in fact" evidentiarystandard. Most importantly, while this decision does notnecessarily preclude successful opposition to certification basedon settled regulatory proceedings, given the typicallyconfidential nature of settlement negotiations in regulatoryproceedings and the lack of investor participation, it is unlikelythat regulatory settlements will stand in the way of certificationunless it is clear that the settlement payment in the regulatoryproceeding properly compensated investors.

BAXTER INT'L: Initiates Voluntary Recall of CLINIMIX Products-------------------------------------------------------------Pharmaceutical Business Review reports that Baxter Internationalannounced it has initiated a voluntary recall in the United Statesof two lots of CLINIMIX and one lot of CLINIMIX E Injectionparenteral nutrition products to the user level due to complaintsof particulate matter found in the products. If infused,particulate matter may result in blockages of blood vessels, whichcan result in stroke, heart attack, or damage to other organs suchas the kidney or liver.

There is also the possibility of allergic reactions, localirritation, and inflammation in tissues and organs. There havebeen no reported adverse events associated with this issue todate, and the root cause of this voluntary recall has beenidentified and resolved.

CLINIMIX (Amino Acid in Dextrose) Injection and CLINIMIX E (AminoAcid with Electrolytes in Dextrose with Calcium) Injections arepremixed sterile intravenous (IV) parenteral nutrition productsthat come in multi-chambered containers and are used as a caloriccomponent and as a protein source in a parenteral nutritionprogram.

Baxter has notified customers, who are being directed not to useproduct from the recalled lots. Customers should locate andremove all affected product from their facility. The affectedlots were distributed to customers between May 2012 and October2013. Unaffected lot numbers can continue to be used according tothe instructions for use.

Affected product should be returned to Baxter for credit bycontacting Baxter Healthcare Center for Service at 1-888-229-0001,Monday through Friday, between the hours of 7:00 a.m. and 6:00p.m., Central Time. Unaffected lots of product are available forreplacement.

Consumers with questions regarding this recall can call Baxter at1-800-422-9837, Monday through Friday, between the hours of 8:00a.m. and 5:00 p.m. Central Time, or e-mail Baxter atonebaxter@baxter.com

Consumers should contact their physician or healthcare provider ifthey have experienced any problems that may be related to usingthis drug product.

Adverse reactions or quality problems experienced with the use ofthis product may be reported to the FDA's MedWatch Adverse EventReporting program either online, by regular mail or by fax.

This recall is being conducted with the knowledge of the U.S. Foodand Drug Administration.

According to the CLINIMIX and CLINIMIX E product labeling,parenteral drug products should be inspected visually forparticulate matter and discoloration whenever solution andcontainer permit. The use of a final filter is recommended duringadministration of all parenteral solutions where possible.

BARCLAYS BANK: Manipulates FX Rates and FX Market, Suit Claims--------------------------------------------------------------Prudent Forex Fund I LLC and Prudent Capital Management, LLC, onbehalf of themselves and all others similarly situated v. BarclaysBank Plc, et al., Case No. 1:13-cv-09237-UA (S.D.N.Y.,December 31, 2013) arises from the Defendants' alleged unlawfulcombination, agreement and conspiracy to fix and restrain tradein, and the intentional manipulation of, the foreign currencyexchange market through the manipulation of the WM/Reuters FXrates during the period of at least January 1, 2003, through thepresent, in violations of the Sherman Antitrust Act.

BERNARD L. MADOFF: Settlement Agreements Reached With JPMorgan--------------------------------------------------------------Irving H. Picard, Securities Investor Protection Act (SIPA)Trustee for the liquidation of Bernard L. Madoff InvestmentSecurities LLC, on Jan. 7 filed two motions with the United StatesBankruptcy Court for the Southern District of New York seekingapproval of recovery agreements totaling approximately $543million for the benefit of BLMIS customers.

The motions seek court approval to settle the avoidance claimsasserted by the SIPA Trustee against JPMorgan for $325 million, aswell as common law claims brought separately by the SIPA Trusteeand in a class action lawsuit, which mirrored the claims developedby the SIPA Trustee's legal team, for $218 million. The SIPATrustee's original complaint was filed in December 2010.

Of the $325 million that JPMC will pay to the SIPA Trustee, $50million will be given to the joint liquidators of the FairfieldSentry Funds for distribution to the indirect investors in theFairfield Sentry Funds, as part of the cooperative agreementreached in May 2011 to share a percentage of certain futurerecoveries.

"I am extremely proud of both the legal and investigative workconducted by David Sheehan, the legal team at BakerHostetler andour other advisors in uncovering and documenting the facts aboutJPMorgan's relationship with Madoff," said Mr. Picard.

Concurrently, the United States Attorney's Office for the SouthernDistrict of New York announced a deferred prosecution agreementwith JPMorgan relating to Madoff, resulting in a $1.7 billioncivil forfeiture payment.

"I want to thank the Securities Investor Protection Corporationfor providing the financial support that allowed us to perform theextensive investigations and legal work needed to unravel Madoff'sfraud and develop our compelling claims," said Mr. Picard. "Mostimportantly, [Tues]day's settlement is a great step toward makinga distribution in 2014."

The JPMorgan settlement monies for the BLMIS Customer Fund and theClass Settlement Fund will become available once final,unappealable court orders are reached for each of the settlements.Distributions from the respective settlements will be made as soonas practicable.

SIPA Trustee's Bankruptcy Avoidance Claims

JPMorgan paid $325 million to settle the SIPA Trustee's avoidanceclaims as part of the compromise settlement. JPMorgan approachedthe SIPA Trustee several months ago seeking a negotiatedresolution.

David J. Sheehan, Chief Counsel to the SIPA Trustee, said, "Asalways, we must weigh the uncertainty, costs and risks oflitigation versus the benefits of settlement. This compromisewith JPMorgan allows us to sidestep those pitfalls whilerecovering additional, significant monies for the BLMIS CustomerFund, which will flow as quickly as possible to BLMIS customerswith allowed claims."

This settlement brings the SIPA Trustee's recoveries to date toapproximately $9.783 billion for the BLMIS Customer Fund, or 55.9percent of the estimated $17.5 billion in principal that was lostin the Ponzi scheme by BLMIS customers who filed claims.

The Class Settlement Agreement

In addition, JPMorgan has agreed to pay $218 million to settlecommon law claims brought by the SIPA Trustee and in a relatedclass action lawsuit. These common law claims were developed bythe SIPA Trustee and set forth in his complaint against JPMorganin December 2010. The class action complaint alleged similarclaims. The settlement of the common law claims was jointlyentered into by the SIPA Trustee and the class actionrepresentatives, Paul Shapiro and Stephen and Leyla Hill, whofiled two related common law class actions against JPMorgan, whichwere later consolidated.

If approved by the District Court, the settlement class willconsist of BLMIS customers who had capital directly invested withBLMIS and had net losses, regardless of whether they filed a claimin the SIPA proceeding.

Court rulings denying the SIPA Trustee's standing to bring commonlaw causes of action led to the filing of the class action.Mr. Sheehan noted that the SIPA Trustee appealed to the UnitedStates Supreme Court on his right to bring common law claimsagainst major financial institutions on October 8, 2013. As partof the settlement, the SIPA Trustee agreed to withdraw thepetition in the JPMorgan case. Regardless of the outcome of thatappeal, he said, the SIPA Trustee's bankruptcy claims ofapproximately $3.5 billion remain outstanding against HSBC, UBSand Unicredit. Absent additional settlements, those cases willadvance through the judicial process.

Mr. Sheehan noted that, as part of the agreement, AlixPartners LLPwill be appointed Claims Administrator for the Class SettlementFund. AlixPartners serves as the SIPA Trustee's claims agent inthe SIPA liquidation of BLMIS and has access to all updatedinformation on allowed claims and prior distributions made by theSIPA Trustee. Mr. Sheehan also noted that the SIPA Trustee willmake his documentation of customers with allowed claims availableto facilitate distribution of the Class Settlement Fund and tovastly reduce potential administrative costs. The BankruptcyCourt hearing for approval of the settlement motions is scheduledfor February 4, 2014 at 10:00 a.m.

In addition to Mr. Sheehan, the SIPA Trustee acknowledges thecontributions of the Baker Hostetler attorneys who worked on thematter: Deborah Renner, Oren Warshavsky, Keith Murphy, SeannaBrown, and Sarah Truong.

Further information on the ongoing Madoff Recovery Initiative anda copy of the SIPA Trustee's motions can be found on the SIPATrustee's website -- http://www.madofftrustee.com

About Bernard L. Madoff

Bernard L. Madoff Investment Securities LLC and Bernard L. Madofforchestrated the largest Ponzi scheme in history, with lossestopping US$50 billion. On Dec. 15, 2008, the Honorable Louis A.Stanton of the U.S. District Court for the Southern District ofNew York granted the application of the Securities InvestorProtection Corporation for a decree adjudicating that thecustomers of BLMIS are in need of the protection afforded by theSecurities Investor Protection Act of 1970. The District Court'sProtective Order (i) appointed Irving H. Picard, Esq., as trusteefor the liquidation of BLMIS, (ii) appointed Baker & Hostetler LLPas his counsel, and (iii) removed the SIPA Liquidation proceedingto the Bankruptcy Court (Bankr. S.D.N.Y. Adv. Pro. No. 08-01789)(Lifland, J.). Mr. Picard has retained AlixPartners LLP as claimsagent.

On April 13, 2009, former BLMIS clients filed an involuntaryChapter 7 bankruptcy petition against Bernard Madoff (Bankr.S.D.N.Y. 09-11893). The case is before Hon. Burton Lifland. Thepetitioning creditors -- Blumenthal & Associates Florida GeneralPartnership, Martin Rappaport Charitable Remainder Unitrust,Martin Rappaport, Marc Cherno, and Steven Morganstern -- assertUS$64 million in claims against Mr. Madoff based on the balancescontained in the last statements they got from BLMIS.

BERNARD L. MADOFF: Class Action Co-Lead Counsel Laud Settlement---------------------------------------------------------------Co-Lead Counsel for the Class of BLMIS/Madoff customers haveannounced a settlement of all potential claims against JPMorganChase Bank, N.A. and its parents, subsidiaries and affiliates.The proposed Class Action Settlement will be contemporaneouslypresented by motions for approval to both United States DistrictCourt Judge McMahon and to Bankruptcy Court Judge Lifland.

The settlement of this Class Action is one part of a multi-partresolution of Madoff-related litigation against JPMorgan involvingsimultaneous, separately negotiated settlements, which include theClass Action Settlement in the amount of $218 million, the SIPATrustee's Avoidance Action settlement in the amount of $325million, and a resolution with the U.S. Attorney's Office for theSouthern District of New York that includes a civil forfeiture inthe amount of $1.7 billion. The payments by JPMorgan inconnection with these agreements will total $2.243 billion andwill benefit victims of Madoff's Ponzi scheme.

Co-Lead Counsel for the customers, Andrew Entwistle of Entwistle &Cappucci LLP and Reed Kathrein of Hagens Berman, were especiallypleased with the settlement. Attorney Entwistle observed that:"It is particularly appropriate that shortly after the 5thanniversary of Madoff's arrest these settlements with JPMorganwill result in such substantial recoveries for Madoff victims."Entwistle also observed that, "In negotiating the Class ActionSettlement, Class Counsel's singular goal was to maximize therecoveries of customer-victims of Madoff's fraud. In our view,this goal has been achieved in spectacular fashion."

Attorney Kathrein observed: "This settlement reflects thecooperative efforts of our team and the Trustee and represents afavorable and economically sound resolution to what wouldotherwise have been a costly and protracted legal battle."

Entwistle & Cappucci -- http://www.entwistle-law.com-- is a national law firm providing service to major public corporations,a number of the nation's largest public pension funds,governmental entities, leading institutional investors, domesticand foreign financial services companies, emerging businessenterprises and individual entrepreneurs.

About Hagens Berman Sobol Shapiro LLP

Seattle-based Hagens Berman Sobol Shapiro LLP --http://www.hbsslaw.com-- is a plaintiff-focused law firm with offices in nine cities across the United States. Founded in 1993,the firm represents plaintiffs in class actions and multi-state,large-scale litigation that seek to protect the rights ofathletes, investors, consumers, workers, whistleblowers andothers.

About Bernard L. Madoff

Bernard L. Madoff Investment Securities LLC and Bernard L. Madofforchestrated the largest Ponzi scheme in history, with lossestopping US$50 billion. On Dec. 15, 2008, the Honorable Louis A.Stanton of the U.S. District Court for the Southern District ofNew York granted the application of the Securities InvestorProtection Corporation for a decree adjudicating that thecustomers of BLMIS are in need of the protection afforded by theSecurities Investor Protection Act of 1970. The District Court'sProtective Order (i) appointed Irving H. Picard, Esq., as trusteefor the liquidation of BLMIS, (ii) appointed Baker & Hostetler LLPas his counsel, and (iii) removed the SIPA Liquidation proceedingto the Bankruptcy Court (Bankr. S.D.N.Y. Adv. Pro. No. 08-01789)(Lifland, J.). Mr. Picard has retained AlixPartners LLP as claimsagent.

CANADA: Veterans' Class Action to Move Forward in Mid-2014----------------------------------------------------------Jean Sorense, writing for Canadian Lawyer, reports that the extentto which a federal government promise or social covenant toveterans to care for them and their families in the event of deathor injury binds successive governments will be tested in a classaction suit hoping to move forward for court certification inmid-2014.

The case is being taken forward by a Vancouver team of MillerThomson LLP led by partner Donald Sorochan --dsorochan@millerthomson.com -- who is representing six veteranswith injuries sustained while serving Canada but feel they havenot been fairly cared for. Mr. Sorochan said the court challengeis unique. "It has never been argued that social covenant hasconstitutional importance."

The cases hinges upon the New Veterans Charter of 2006 issued todeal with Afghanistan veterans and sets out what services andcompensation returning injured veterans can receive. Payments arelump-sum with a cap of $250,000. The charter replaces previousPension Act benefits, which were long-term and monthly. Mr.Sorochan maintains the federal government provides a lesserstandard of care to veterans under the NVC than those given toother service men and women under the Pension Act. Mr. Sorochan'steam is arguing the federal government does not have the right tolimit that level of care and compensation.

The problem facing veterans under the NVC was brought to hisattention when a neighbor asked for help after his sonGavin Flett, a reservist, had been deployed to Afghanistan wherehe sustained severe leg injuries while felling a tree. He has hadsurgeries on the smashed legs and ongoing medical problems. Thefederal government's NVC, which provides lump sum payments, paidout $13,500 based upon a rate established for various injuries andincome loss.

Mr. Sorochan said he is not against lump-sum payments if they areadequate to meet the individual's long-term needs for physical orpsychological support when an injury has occurred. Nor, is headvocating suing for battlefield decisions.

"I am not advocating the negligence of a battlefield decision," hesaid, but "if a person is injured through service to his or hercountry" then there should be fair compensation. Mr. Sorochansaid a social covenant was made to military personnel during theFirst World War by Prime Minister Robert Borden in 1917.

"It is about promises that Borden made, mostly to men in thosedays and prior to Vimy Ridge, that if you fight for your countryand you are injured, we will care for you and for your family ifyou fell," said Mr. Sorochan. "That social covenant was not madejust at one time but was repeated and also in veteran legislationfrom the First World War until this new charter. All of a suddenthat disappears.''

The federal government had earlier attempted to get the actiondismissed but in Scott v. Canada (Attorney General), releasedSept. 6, 2013, the justice described the action as "about promisesthe Canadian government made to men and women injured while inservice to their country and whether it is obliged to fulfillthose promises." The court permitted the action to continue onthe basis of the social covenant and the honour of the Crownpleadings as well as claims for breach of fiduciary duty andclaims under the Charter. In the September ruling, the federalgovernment acknowledged the NVC did not provide the same coveragethat was provided under the Pension Act.

CANADA: Farmers Appeal Wheat Board Class Action Ruling------------------------------------------------------The Southwest Booster reports that Stewart Wells, chairperson ofThe Friends of the Canadian Wheat Board announced that farmerlitigants, with the full support of the group, have filed anappeal of a Nov. 29, 2013 Federal Court ruling by Madam JusticeTremblay-Lamer.

Mr. Wells said "We believe Justice Tremblay-Lamer made errors offact in her judgment and our supporters feel that it is imperativethat we continue with our legal efforts to recover the C$17billion dollars of value and assets farmers put into the WheatBoard."

Mr. Wells went on to point out "It was 50 years ago this pastmonth the Canadian Wheat Board, in consultation with its farmeradvisory committee moved into a downtown Winnipeg office buildingbought and paid for with farmers' money, and no amount of legalsophistry or rationalization can change the fact farmers are owedcompensation for what amounts to an unprecedented theft of privateresources by Ottawa."

Mr. Wells concluded by saying "Farmers know who built and paid forCanadian Wheat Board assets and farmers have a legitimateexpectation of compensation from the federal government."

Nathan Macklin, one of the farmer plaintiffs from Alberta said "ifOttawa did this to a multinational corporation they would beforced by NAFTA and our other trade obligations to providecompensation. Allowing this essentially makes farmers, and allCanadians, second class citizens in our own country."

Anders Bruun, legal counsel for the Friends of the Canadian WheatBoard, stated "this appeal moves forward the legal action on theseizure of the Wheat Board's assets and reputation from farmers bythe Federal government and shows the resolve of my clients to keepfighting against the expropriation without compensation that thegovernment has visited on farmers."

COLEMAN CABLE: Being Sold Too Cheaply to Southwire, Class Claims----------------------------------------------------------------A lawsuit was initiated in the Delaware Chancery Court allegingthat the Company is being sold too cheaply to Coleman Cable, Inc.

Southwire and Coleman announced on January 6, 2014, that CubsAcquisition Corporation, a wholly owned subsidiary of Southwire("Purchaser"), has commenced the previously announced tender offerfor all of the outstanding shares of common stock of Coleman at aprice of $26.25 per share, net to the seller in cash, withoutinterest, less any applicable withholding taxes.

Coleman Cable, Inc. is a leading manufacturer and innovator ofelectrical and electronic wire and cable products for residentialand commercial construction, industrial, OEM, and consumerapplications, with operations in the United States, Honduras, andCanada.

COMCAR INDUSTRIES: Accused of Not Paying Overtime Compensation--------------------------------------------------------------Jeannette Liciaga, on behalf of herself and those similarlysituated v. Comcar Industries, Inc., a Florida Profit Corporation,Case No. 8:13-cv-03275-JDW-EAJ (M.D. Fla., December 31, 2013)alleges that the Plaintiffs worked for the Defendant in excess of40 hours within a work week but was not paid at a rate of one andone-half times her regular rate for all hours worked in excess of40 hours in a work week.

Comcar Industries, Inc., is a Florida Profit Corporationheadquartered in Polk County, Florida.

CORDISH COS: Principals Expect to Begin Settlement Talks--------------------------------------------------------James Briggs, writing for Baltimore Business Journal, reports thatCordish Cos. principals are expected to begin settlement talkswith six former employees of bars that were part of a mid-2000sCordish project in Louisville, Ky.

The former workers, who are part of a class-action lawsuit makingits way through U.S. District Court in Louisville, allege theywere required to perform unpaid work for three bars included inthe Baltimore-based developer's 4th Street Live development.

Cordish does not own the bars, two of which have closed. Butseveral company executives, including Reed Cordish, Blake Cordish,Jonathan Cordish and his wife, Melissa, and a trust in the name ofJoseph S. Weinberg, have ownership stakes in the bars, accordingto WDRB-TV in Louisville.

The parties were set to attend a settlement conference Jan. 8,according to WDRB, but it is routine and no immediate resolutionis expected.

DAVITA HEALTHCARE: Granuflo, NaturaLyte Class Action Ongoing------------------------------------------------------------Gordon Gibb, writing for LawyersandSettlements.com, reports that ffor the GranuFlo and NaturaLyte patient, there's a much narrowerfocus -- the simple act of undergoing kidney dialysis, which isundertaken thousands of times throughout the world each daywithout complication, suddenly, and without apparent explanation,turns ugly and results in GranuFlo cardiac arrest, or evenGranuFlo sudden death. For the affected patients and theirfamilies, the various moving parts are not the issue. Whatmatters to them is that it simply shouldn't have happened at all.

DaVita Healthcare Clinics is one of two players in the GranuFloand NaturaLyte portfolio. The other is Fresenius Medical Care,the manufacturer of the two dialysis products and a competitorwith DaVita in the dialysis market. Both operate scores ofdialysis clinics and are competing for market share.

DaVita is also the target of a GranuFlo class-action lawsuit forits role in allegedly putting dialysis patients at risk withregard to alkali dosing errors inherent with GranuFlo andNaturaLyte. DaVita, it should be noted, was also the subject of afederal investigation with regard to an alleged doctor kickbackscheme -- and the firm has also faced allegations of wageimproprieties involving its employees.

But Fresenius Medical Care (Fresenius, FMC) is also the target ofvarious GranuFlo and NaturaLyte side effects lawsuits. And forboth firms -- as it appears to be the case with any pharmaceuticalcompany or medical device manufacturer -- the exposure to legalaction is simply the cost of doing business.

GranuFlo and NaturaLyte are two products manufactured by Fresenius-- but also used by competitors such as DaVita -- that areinherent with the dialysis process. GranuFlo comes in powderedform, while NaturaLyte is a liquid. Both products are used toremove toxins from the bloodstream during dialysis, and mixing ofthe products is integral to the establishment of optimum levels ofbicarbonate in the bloodstream: bicarbonate that is too high posesa risk for NaturaLyte side effects or even GranuFlo sudden death.

In November 2011, Fresenius issued a strongly worded memo todoctors and healthcare practitioners in its Fresenius-brandeddialysis clinics, informing their people of an internal studyevaluating 941 patients in 667 Fresenius dialysis centers havingsuffered cardiopulmonary arrest during or following dialysistreatment. The study determined that these patients were six toeight times more likely to suffer heart attacks and GranuFlosudden death if they had elevated bicarbonate levels.

The suggestion was that there was an issue with the labeling ofGranuFlo and NaturaLyte -- an observation backed up by an e-mailedstatement to the Boston Business Journal by Kent Jarrell, aspokesperson for Fresenius who noted that a subsequent FDA recallof GranuFlo and NaturaLyte involved the labels only, and not theproducts themselves.

"The FDA has not suggested any change in the productionformulation or asked that the products be returned by clinics toFMC," Mr. Jarrell wrote in an e-mailed statement to the BostonBusiness Journal. "We believe these lawsuits based on GranuFloand NaturaLyte are without merit and we will defend themvigorously."

The two new GranuFlo cardiac arrest lawsuits to which Jarrell isreferring were filed December 16 in federal court inMassachusetts, and are among more than 300 lawsuits Fresenius isfacing over the issue.

DaVita healthcare clinics are also facing their share of lawsuits.But the backstory that also impacts DaVita is what Fresenius isalleged not to have done -- and that is to have shared theinternal memo with non-Fresenius clinics employing the use ofGranuFlo and NaturaLyte. Fresenius defended its decision, at thetime, noting that the study results were still preliminary.

However, the US Food and Drug Administration (FDA) thought theissue was serious enough to mandate a Class 1 recall (of thelabels, according to Jarrell) once the internal memo, issued inNovember 2011, was leaked to the FDA in March 2012.

Plaintiffs claim that Fresenius knew or should have known aboutthe potential for alkali dosing errors and elevated levels ofbicarbonate. Ditto for DaVita -- although what liabilityFresenius will face given the alleged failure to widely distributeits concerns over GranuFlo and NaturaLyte to non-Fresenius centerssuch as DaVita, remains to be seen.

The two most recent lawsuits against Fresenius Medical Care wereconsolidated, along with at least 145 others, and assigned to USDistrict Court Judge Douglas Woodlock in a NaturaLyte class-actionlawsuit.

That, together with the GranuFlo class-action lawsuit, will remainthe focus of much attention in 2014.

DIGNITY HEALTH: Judge Denies Motion to Dismiss Class Action-----------------------------------------------------------Kathy Robertson, writing for Sacramento Business Journal, reportsthat a federal judge has denied a motion to dismiss a class actionfiled on behalf of 60,000 employees at Dignity Health that allegesthe health system is underfunding its pension plans by $1.2billion.

The lawsuit was filed in U.S. District Court in San Francisco onApril 1. It alleges the company falsely claims its pension plansare exempt from federal rules because they are "church plans" thatfall under looser guidelines.

Judge Thelton Henderson didn't buy it. In a ruling Dec. 12, heruled that a church plan must be established by a church or "anassociation of churches." The ruling allows the case to proceedin court. Parent company to local Mercy hospitals, the healthsystem has more than 7,000 employees in the Sacramento region.

Dignity doesn't contend it is a church, but argues its pensionplan is exempt from Employee Retirement Income Security Act(ERISA) funding requirements because it is maintained by atax-exempt entity controlled by or associated with a church orassociation of churches.

"We believe we have complied with the law, including theapplicable IRS requirements for our retirement plans," officialsat the San Francisco-based health system said in a statementregarding the court ruling.

Because Dignity is not a church or an association of churches,doesn't claim it is, and doesn't have legal authority to establishits own church plan, the health system is not exempt from ERISArules, Judge Thelton concluded.

Formerly called Catholic Healthcare West, the health systemchanged its name to Dignity Health two years ago to reflect a newstrategy for growth that would allow partnerships with non-Catholic hospitals with shared values but fewer restrictions overreproductive health care and other services.

DYNIA & ASSOCIATES: Accused of Violating Fair Debt Collection Act-----------------------------------------------------------------Igor Davidov, on behalf of himself of himself and all otherssimilarly situated v. Dynia & Associates, LLC, an Illinois LimitedLiability Company; Alfred S. Dynia, Individually and in hisOfficial Capacity on behalf of Dynia & Associates, LLC; AnthonyCrews, Individually and in his Official Capacity on behalf ofDynia & Associates, LLC; Greg Neely, Individually and in hisOfficial Capacity on behalf of Dynia & Associates, LLC; MichaelProwicz, Individually and in his Official Capacity on behalf ofDynia & Associates, LLC; Terrence Fogarty, Individually and in hisOfficial Capacity on behalf of Dynia & Associates, LLC; AhmadMerritt Individually and in his Official Capacity on behalf ofDynia & Assiciates, LLC; Crown Asset Management, LLC, a GeorgiaLimited Liability Company; and John and Jane Does Numbers 1through 25, Case No. 1:13-cv-07410-MKB-MDG (E.D.N.Y., December 31,2013) alleges violations of the Fair Debt Collection PracticesAct.

EVANSTON NORTHWESTERN: Jones Day Discusses Class Action Ruling--------------------------------------------------------------Toby G. Singer, Esq. -- tgsinger@jonesday.com -- Paula W. Render,Esq. -- prender@jonesday.com -- Michael A. Gleason, Esq., andRoberto C. Castillo, Esq., at Jones Day report that on December10, 2013, the U.S. District Court for the Northern District ofIllinois granted class certification to customers claiming thatthe merger of two Chicago-area hospital groups, EvanstonNorthwestern Healthcare Corp. (ENH) and Highland Park Hospital,resulted in higher prices for patients. Class action litigationin merger cases is not common, because the remedy for aprospective merger challenge is an injunction, not damages.Because this case is a challenge to a completed transaction, whereplaintiffs can allege actual injury not just prospective harm, itcould result in a significant monetary recovery for plaintiffs.This is the first private antitrust class action in a hospitalmerger case.

The class action stems from ENH's acquisition of rival HighlandPark Hospital in 2000, forming a new hospital system. In 2004,the FTC filed a complaint alleging that the merger had lessenedcompetition for general acute care hospital services in thegeographic "triangle" formed by the three hospitals in the newsystem. The FTC's decision to challenge the merger came after astring of losses by federal and state antitrust authorities inhospital merger cases from the mid-1990s through 2001. In aneffort to reverse this trend, the FTC embarked on a retrospectiveanalysis of consummated hospital mergers to evaluate whether thesemergers had generated anticompetitive effects. The FTC's studyresulted in its challenge of the ENH transaction.

After a trial in 2005, an FTC administrative law judge (ALJ) heldthat the transaction had substantially lessened competition, asevidenced by dramatic post-merger price increases. The ALJordered a full divestiture of Highland Park from ENH. TheCommission affirmed the ALJ's decision on the merits, but insteadof ordering a divestiture, it required that the parties establishseparate, independent teams to negotiate prices with health plans.As the Commission acknowledged, the remedy was unusual, becausethe antitrust agencies typically require a divestiture to restorecompetition lost as a result of a merger. The Commission reasonedthat in the ENH case a divestiture would be costly because thehospitals had functioned as a merged entity for over seven years.In re Evanston Northwestern Healthcare Corp., Dkt. No. 9315 (May17, 2005).

Just days after the FTC issued its opinion on the merits, privateplaintiffs filed a federal antitrust class action on behalf of allpatients and other direct purchasers of healthcare services in thearea served by ENH. The complaint alleged that the class memberspaid inflated prices for healthcare services at ENH hospitalsbecause ENH had raised the rates it charged health plans abovecompetitive levels. The complaint alleged antitrust violationsunder Section 2 of the Sherman Act, as well as Section 7 of theClayton Act, and sought treble damages and injunctive relief fromENH. Berkowitz v. Evanston Northwestern Healthcare Corp., No.1:2007cv04523 (N.D. Ill. Aug. 10, 2007). The plaintiffs moved tocertify a class of "all end-payors who purchased inpatient andoutpatient healthcare services directly from" the new system.Such a class could include individuals, self-insured patients, andhealth plans, though health plans have not yet decided whether tojoin the class.

Previously, the court had denied class certification because itfound that the plaintiffs could not show uniform price increasesfor all services and all plaintiffs. The plaintiffs appealed tothe Seventh Circuit, which held that the class action rules do notrequire a showing of uniform price increases, just use of commonevidence and a common methodology to show harm.

Back at the district court, the lone remaining issue was whether aclass action is superior to other methods to resolve the case, aprerequisite to class certification. ENH argued that health plansand self-insured subscribers were bound by arbitration provisionsin its contracts with health plans. The court found this argumentunconvincing because it was unclear the arbitration clausescovered antitrust claims, the health plans had not yet decided tojoin the class, and because the health plans likely numbered just"a fraction" of the proposed class. The court noted that it couldrevisit class certification if it turns out that a "significantpercentage" of health plans and self-funded subscribers mustarbitrate their claims.

This is an important case. This is the first private antitrustclass action in a hospital merger case. In pre-consummationmerger challenges, the only available remedy is prospectiveinjunctive relief to halt a transaction. As a result, such casesdo not often attract class action plaintiffs, because noquantifiable harm has occurred prior to closing. But in thiscase, the FTC's finding of actual harm from artificially highprices could lead to a substantial monetary recovery. Since thehospitals have operated as a merged entity for over 13 years (withcombined contracting teams for seven), the consequence of losingthe class action -- an award of treble damages -- is far moresevere than the FTC's 2007 remedy. The certification of the classat this point in time illustrates how private antitrust litigationmay follow a merged entity for years after enforcement agencieshave allowed the merger to take place. This case also isconsistent with a growing number of private antitrust casesbrought against hospitals. The possibility of significantmonetary recovery in health care antitrust matters is likely toattract more attention from plaintiffs' attorneys in the future.

FACEBOOK INC: Faces Class Action Over E-mail Privacy Violation--------------------------------------------------------------Beth Winegarner and Juan Carlos Rodriguez, writing for Law360,report that Facebook Inc. was hit with a proposed class action inCalifornia federal court on Dec. 30 accusing the social mediatitan of violating users' privacy by mining the content of theirprivate messages and using the information to create targetedadvertisements.

In the latest privacy suit against free communications services --which have also gone after Google Inc. and Yahoo Inc. -- Facebookusers Matthew Campbell and Michael Hurley claim the companymisleads subscribers about the privacy of their messages.Instead, the company looks through users' private messages forURLs and other information it can use to create targeted ads andboost its ad revenue, the complaint said.

"All of [Facebook's] representations reflect the promise that onlythe sender and the recipient or recipients will be privy to theprivate message's content, to the exclusion of any other party,including Facebook," the complaint said.

In its terms of service, Facebook offers users detailedinformation about how to adjust the privacy settings for bothpublic and private messages, but those disclosures leave out thefact that the company looks through users' emails to one another.It scans for links to outside sites, particularly ones thatcontain a Facebook "like" button, and studies have found thatFacebook then counts the link toward two "likes," the complaintsaid. In other instances, it's looking for evidence that usersare discussing criminal activity, it said.

Although the practice is allegedly hidden from users, it's sharedwith developers working for Facebook and third-party sites thatinterface directly with the social media giant. Misleading usersallows the company to further profit from its data miningpractices, the complaint said.

"Representing to users that the content of Facebook messages is'private' creates an especially profitable opportunity forFacebook, because users who believe they are communicating on aservice free from surveillance are likely to reveal facts aboutthemselves that they would not reveal had they known the contentwas being monitored. Thus, Facebook has positioned itself toacquire pieces of the users' profiles that are likely unavailableto other data aggregators," it said.

Messrs. Campbell and Hurley seek to represent a nationwide classof United States residents and Facebook users who sent or receivedprivate messages on the social media site, and whose messagescontained the URL of a third-party Web page, the complaint said.They accuse Facebook of violating the Electronic CommunicationsPrivacy Act, the California Invasion of Privacy Act and theCalifornia Unfair Competition Law, and are seeking declaratory andinjunctive relief, as well as restitution and statutory damages,the complaint said.

"We believe the allegations are without merit and we will defendourselves vigorously," a representative for Facebook told Law360on Jan. 2.

In multidistrict litigation, Gmail users have accused Google ofscanning their private emails and using the information in them tocreate targeted ads. Yahoo faces a similar proposed class actionfiled in California federal court in October.

HORIZON HEALTH: Patients Likely Exposed to Unsterilized Forceps---------------------------------------------------------------Alison Auld, writing for The Canadian Press, reports thatofficials at New Brunswick's largest health authority deliberatedfor three months whether to inform the public about unsterilizedbiopsy forceps before finally releasing the information andadvising patients to get tested for hepatitis and HIV last year.

Documents recently released under access-to-information lawsoutline how staff with the Horizon Health Network spent weekstrying to assess the risk to patients who may have been exposed toforceps that were not appropriately sterilized at the MiramichiRegional Hospital for 14 years.

Emails between the health authority's administrators indicatethere was uncertainty and conflicting opinions about whether tonotify patients that forceps used in colposcopies were not beingsteam sterilized as recommended.

In one email, the network's chief of medical staff seeks theopinion of an infectious disease specialist in Ontario, asking ifshe could assess the potential exposure to pathogens. The emailfrom Dr. Thomas Barry explains that staff discovered on May 24that forceps used in cervical biopsies were being disinfected witha solution. Improper sterilization raises the possibility ofexposure to hepatitis B, hepatitis C and HIV.

"We have not disclosed yet and our policy is disclosure,"Dr. Barry wrote in an email dated June 8 to Dr. Allison McGeer, amicrobiologist at Mount Sinai Hospital in Toronto.

"If provided with adequate info re process as well as contacts,would you help us with a risk assessment opinion. . . . There issome urgency as we want to disclose."

A few days later, Horizon CEO John McGarry asked the authority'svice-president of clinical services whether Dr. McGeer might notsee the need to inform the public.

"Do you think there is any chance she might find our processes,and actual practices (time and effort) sufficient enough to avoiddisclosure? We will need to be convinced that the best solution isnot to simply disclose with all the assurance (sic) she has statedthat risk is minuscule," he wrote.

The health authority's policy encourages informing patients duringan event in which no harm has occurred but the potential for harmexists. Disclosure is left to "clinical and professional judgmentand is determined on a case by case base," according to thepolicy.

Geri Geldart, Horizon's vice-president of clinical services, saysthe process of determining the risk, identifying patients,deciding what tests should be done and what information should beprovided to patients is complex.

"It was a complicated situation to review and it took time to eventrack back what happened and how long it had been going on," shesaid in an interview.

"I'm comfortable with the time it took. It would have been goodif we could have done it sooner, but if we had done it sooner I'mnot sure we could have answered people's questions."

Apology

Dr. Gordon Dow, an infectious disease consultant from the MonctonHospital, did not feel patient notification was warranted in thedays soon after the discovery because the risk of infection waslow, according to a briefing note also obtained through access-to-information.

In the end, it was decided the information should be releasedpublicly.

In a news conference on Aug. 28, Mr. McGarry apologized for theerror and described how the unsterilized forceps were used from1999 to 2013. He urged nearly 2,500 patients to get tested forhepatitis B, hepatitis C and HIV if they had undergone acolposcopy, a procedure used to examine the cervix, vagina andvulva to detect cervical cancer. He also stressed that the riskof infection was extremely low, even without sterilization.

The health authority is facing a proposed class-action lawsuitover the matter, with the claimant alleging negligence and breachof contract. Alta Christine Little is also seeking damages forfailing to inform patients in a timely manner of their possibleexposure to disease.

Ms. Geldart said she couldn't comment on the legal matter.

Rights of patients

Theresa Fillatre, senior policy adviser with the Canadian PatientSafety Institute, couldn't speak to the New Brunswick case butsays it can take time to determine if there was a breakdown in thehospital's system and how many people may have been affected.

"It is a right of the patient to know what has happened to them,"she said, adding that three months seemed a reasonable time frame.

"You don't want to create fear in the public if there's no needfor fear, but at the same time you have to figure out whendisclosure is justified."

The health officials appear to have reviewed similar cases, likeone in Toronto in 2003 in which 900 men were told to get pathogentesting after prostate-biopsy equipment was not cleaned properly.The case was reviewed in the New England Journal of Medicine,which concluded that "disclosure should be the norm, even when theprobability of harm is extremely low."

INDALEX INC: Kaplin Stewart Discusses Ruling on Insurance Coverage------------------------------------------------------------------Josh Quinter, Esq. -- jquinter@kaplaw.com -- at Kaplin Stewart ofKaplin Stewart Meloff Reiter & Stein, P.C. reports that in apublished opinion on December 3, 2013, the Pennsylvania SuperiorCourt held that the gist of the action doctrine does notnecessarily preclude coverage under a commercial general liabilitypolicy in Pennsylvania.

In Indalex, Inc. v. National Union Fire Insurance, Indalex suedNational Fire to compel insurance coverage for claims being madeagainst it in multiple out-of-state lawsuits. The underlyingclaims against Indalex were for the defective design andmanufacture of certain windows and doors used in construction. Itwas claimed in the underlying lawsuits that these defectiveproducts caused water leakage that resulted in, among otherthings, cracked walls and mold damage. Those claims were framedas strict products liability, negligence, breach of warranty, andbreach of contract claims.

After the trial court granted National Fire summary judgment, theSuperior Court reversed on the grounds that a defense was owed asthe complaints were plead. The analysis centered in part on theSupreme Court's holding in Kvaerner Metals Division of KvaernerU.S., Inc. v. Commercial Union Insurance Co. In that case, theSupreme Court held that there was not coverage for defective workunder a commercial general liability policy because the defectivework did not constitute an "occurrence" under the policy. Thatconclusion was based in part on the fact that the underlyingclaims in Kvaerner were contractually based.

In Indalex, the theories of liability were instead based largelyin tort. Rather than arguing that they did not get the benefit ofthe bargain in the underlying actions, the Plaintiffs framed theircomplaints as a products liability and negligence claims. WhileIndalex argued that these claims were covered under its policy,National Union maintained that the gist of the action doctrineprevented Indalex from recasting the Plaintiffs' claims as coveredtort claims when they were really contract claims.

While the trial court sided with National Union, the SuperiorCourt agreed with Indalex. In looking at the underlyingcomplaints, the Superior Court concluded that the "gravamen" ofthe allegations sounded in tort. Central to this conclusion wasthe fact that the windows and doors were "off-the-shelf" productsthat failed and allegedly caused property damage and personalinjury. The issue was a defective product, not bad workmanship inthe Superior Court's eyes. Since the claims were framed as tortclaims, there was a sufficient foundation for coverage under thepolicy unless or until the tort claims were deemed invalid.

This decision represents one of the first cracks in the armor thatis Kvaerner. If it stands -- which seems likely at this point --it represents a possible work around to obtain coverage in certaintypes of construction cases where it was previously presumed to beimpossible.

KINROSS GOLD: Stikeman Elliott Discusses Class Action Ruling------------------------------------------------------------Ingrid A. Minott, Esq. -- iminott@stikeman.com -- at StikemanElliott LLP reports that on November 5, 2013, Justice Perellreleased his decision in Bayens v. Kinross Gold Corp. denyingleave to commence a statutory misrepresentation claim under PartXXIII.1 of the Ontario Securities Act (the "OSA") and holding thatas a result of the failure to obtain leave for their statutoryclaim, the plaintiffs' putative class proceeding could not satisfythe criteria for certification of a class action, including withrespect to the common law claim for negligent misrepresentation.

Background

In Bayens, several Trustees of the Musicians' Pension Fund ofCanada ("Musicians") commenced a secondary marketmisrepresentation claim against Kinross Gold Corporation, aCanadian international mining company, and several current andformer officers and directors of Kinross. The proposed classaction was brought on behalf of purchasers of Kinross shares fromMay 3, 2011 to January 16, 2011 and related to Kinross' purchase,in September 2010, of Red Back Mining Inc., which owned theTasiast mine in Mauritania and the Chirano mine in Ghana. Theplaintiffs asserted three core allegations of misrepresentationpertaining to Kinross' acquisition of the mines: first, inMay 2011 Kinross should have reported a write down of its goodwillassociated with the two mines because Kinross' failure to achievecertain expectations regarding the Tasiast mine within six toeleven months of Kinross' purchase of Red Back Mining Inc. was atriggering event for a write down (the "GoodwillMisrepresentation"); second, certain Kinross disclosures weremisleading because they implied that the presence of lower gradeore in certain areas of the Tasiast mine was a new discovery (the"Low-Grade Ore Misrepresentation"); and third, Kinrossmisrepresented that the expansion project for the Tasiast mineremained on schedule (the "On-Schedule Misrepresentation").

A similar class action commenced against Kinross in the UnitedStates was partially dismissed. The US District Court for theSouthern District of New York permitted the plaintiffs' claim thatKinross had misrepresented the schedule for the Tasiast expansionproject to proceed. Notably, Justice Perell found that the resultin the US class action played a role in shaping Musicians' case onthe leave motion.

The Leave Motion

Section 138.8(1) of the OSA permits the court to grant leave tocommence a secondary market claim, where the court is satisfiedthat (a) the action is being brought in good faith; and (b) thereis a reasonable possibility that the action will be resolved attrial in favor of the plaintiff. As Kinross did not challengewhether Musicians had satisfied the good faith requirement,Justice Perell was only required to resolve the issue of whetherthere was a reasonable possibility that the action would beresolved at trial in favor of Musicians for any or all of itsthree core allegations of misrepresentation.

As a preliminary matter, Justice Perell confirmed that the test ofa "reasonable possibility of success at trial" imposes a lowevidentiary threshold. However, low threshold notwithstanding,the leave test is a genuine screening mechanism that sets a higherevidentiary standard than the "some basis in fact" standardapplied to certification motions. Accordingly, in determiningwhether there is a reasonable possibility of success at trial,Justice Perell clarified that the court may assess and weighevidence; albeit in a limited way that does not impose an onerousburden on the plaintiff.

Turning to the issue of whether or not there is a reasonablepossibility that Musicians' action would succeed at trial, JusticePerell noted that the action was launched by Musicians withnothing more than "speculation" and "suspicion." With respect tothe Goodwill Misrepresentation claim, Justice Perell held thatMusicians' case for a triggering event for a good will impairmentbased on what Kinross knew or ought to have known had nopossibility of success. In particular, there was no evidentiarybasis to support an argument that because of what Kinross knewabout its drilling results in 2011, Kinross should have changedits expectations for new discoveries at the Tasiast mine from highhopes to disappointment and accordingly written down the Tasiastmine's goodwill. In finding that the Goodwill Misrepresentationclaim had no reasonable possibility of success, Justice Perellrejected the evidence of Musicians' accounting expert on the basisthat the expert witness made "three mutually exclusive mechanicaland analytical errors," each of which caused Musicians' argumentthat there was a triggering event in 2011 requiring a write downof goodwill for the Tasiast mine to implode.

Justice Perell also rejected the Low-Grade Ore Misrepresentationclaim which was based on the allegation that certain publicdisclosures made by Kinross in 2011 that confirmed the presence oflower grade ore in the West Branch zone of the Tasiast mine weremisleading because the disclosures implied that the presence oflower grade ore was a new and recent discovery, whereas Kinrosswas aware of the existence of the low grade ore at the time of itsacquisition of Red Back Mining Inc. Justice Perell held that themisrepresentation claim had no chance of success at trial becauseKinross' statement confirming the presence of lower grade ore didnot imply a new and recent discovery as Musicians contended. Tothe contrary, as found by Justice Perell, the allegedmisrepresentation meant exactly the opposite of what Musiciansasserted; it conveyed the meaning that no new low grade ore hadbeen discovered but the existing low grade ore was beingreassessed for its economic value.

Regarding Musicians' On-Schedule Misrepresentation claim, JusticePerell found that the claim had not been pled in Musicians'Amended Statement of Claim and appeared to have been advanced atthe leave motion because of the US plaintiffs' success in pleadinga similar claim against Kinross. Justice Perell held that itwould be "procedurally improper and unfair to permit Musicians toadvance the claim for the leave motion."

As Musicians could not establish a reasonable possibility ofsuccess at trial on any of its core misrepresentation claims,Justice Perell denied leave under section 138.8 of the OSA.

The Certification Motion

In the decision, Justice Perell provided his views on thenecessity of the court restructuring its approach to the normalcertification criteria for a class action in the case of a PartXXIII.1 claim. From Justice Perell's perspective, if leave tocommence a Part XXIII.1 claim is granted, "the court shouldcertify a class action for both the statutory and the common lawnegligent misrepresentation claim" subject to the provisio thatthe reliance element of the common law misrepresentation claimmust be proved at individual issues trials. His Honour noted thatit is appropriate to certify the common law negligentmisrepresentation claim as well as the statutory claim because, bysatisfying the stricter merits based leave test, the plaintiffwill have also satisfied the less onerous certification test.However, if leave is not granted, neither the statutory claim northe common law claim can be certified but the plaintiff mayproceed with an individual common law claim for negligentmisrepresentation.

Applying this approach to Musicians' motion for certification,Justice Perell held that because he refused to grant leave tocommence the statutory claim, Musicians' certification motionshould be dismissed. Had he granted leave for the secondarymarket claim, Justice Perell would have certified a class actionfor both the statutory claim and the common law negligentmisrepresentation claim because, by successfully obtaining leave,Musicians would have satisfied the first four of the five criteriafor certification and would likely have been in a position tosatisfy the fifth criterion.

L'OREAL USA: McGuireWoods Discusses Class Action Settlement Ruling------------------------------------------------------------------Andrew J. Trask, Esq. -- atrask@mcguirewoods.com -- atMcGuireWoods LLP reports that in the wake of Comcast Corp. v.Behrend, a number of different courts have weighed in on thequestion of whether variations in damages should precludecertification of a litigation class. Last month, however, theDistrict of the District of Columbia issued an opinion whichimplied that variations in damages might preclude thecertification of a settlement class.

Richardson alleged that L'Oreal falsely marketed certain hair careproducts as "available only at fine salons and spas" even thoughthey were also available at big-box retailers like Kmart.

L'Oreal and the plaintiffs sought to settle the case forinjunctive relief -- L'Oreal would change its labeling -- eventhough the class members would also be extinguishing any classclaims for monetary relief. L'Oreal's logic for doing so is clear:it got a broad release. The plaintiffs' logic was less so: theyargued that the variations in damages were too great to allowcertification under Rule 23(b)(3), so injunctive relief was allthey could get.

The CCAF objected, making three substantive arguments:(1) the plaintiffs lacked standing to seek injunctive relief(after all, they weren't in danger of being misled again);(2) individualized damages issues would predominate, particularlybetween retail and mass-market purchasers; and(3) the class was not cohesive enough to justify Rule 23(b)(2)certification.

The court did not accept the standing argument, though it concededthat its "power . . . seems undeniable," it found that "publicpolicy requires plaintiffs to have standing here." It wastroubled, however, by the predominance and cohesiveness problemspresented by the class. (The plaintiffs tried to argue against apredominance analysis since they did not seek damages, but thecourt ruled that if they extinguished damages claims, then absentclass members deserved Rule 23(b)(3) notice and opt-outprotections.) And it was particularly troubled by theramifications of settling a class action under Rule 23(b)(2) thatwould also extinguish classwide damages claims as "too hard tocertify." As it wrote:

It is not hard to imagine adventurous or avaricious counsel takingadvantage of this novel settlement structure to the detriment ofabsent class members. For example, imagine a putative consumerclass action where damages determinations would be relativelycomplex or speculative on a nationwide basis, but perhaps not soon a state-to-state basis. Calculating that a piece of a state-wide class would not be very rewarding to pursue, the hypotheticalplaintiffs build a record showing that a broad nationwide classseeking damages could never be certified. Then, plaintiffs seekto file a suit for injunctive relief only and seek to settle withthe defendant. Because releasing all damages claims in a (b)(2)settlement class would almost certainly be improper, the defendantagrees that plaintiffs need not release individual damages claims--the value of which is trivial, as in many consumer class actions.But plaintiffs agree to release class-wide damages claims, underthe auspices of an impossible-to-certify nationwide class.Plaintiffs get attorney's fees, defendant gets a near-bulletproofrelease, and class members get . . . an injunction.

In the end, stripping the procedural right to bring a damagesclass action from absent class members without their knowledge orconsent -- and effectively precluding their damages claims -- isnot proper.

The court also held that the intra-class conflict between thosewho bought at salons and those who bought at Kmart meant the classwas not cohesive enough for Rule 23(b)(2) certification.

While the court also conducted a Rule 23(e) analysis (which thesettlement also flunked), it is the Rule 23 analysis that is mosthelpful for defense attorneys going forward: variations in damagescontinue to matter. Sometimes they preclude certification simplybecause they are so complex themselves. But sometimes -- likehere -- they point out larger problems in a proposed class.

MEADOWS CASINO: Former Casino Dealer Files Overtime Class Action----------------------------------------------------------------Brian Bowling, writing for Pittsburgh Tribune-Review, reports thatThe Meadows Casino & Racetrack requires its dealers to work beforeand after their shifts but doesn't pay them regular or overtimepay for the work, a former dealer claims in a proposed federalclass-action lawsuit filed on Dec. 31.

Michael C. Yanchak, age and address unavailable, says that thecasino owes him between a half hour to an hour of regular pay andovertime for every week he worked between July 2010 and July 2013.His hourly wage increased from $7.25 per hour to $7.70 per hourover the three years, the lawsuit says.

Mr. Yanchak is suing on behalf of more than 350 current and formerdealers, the lawsuit says. The casino employs more than 350dealers and 50 floor supervisors, the lawsuit says.

The firm warns individuals who were exposed to injectionsmanufactured by NECC, and their attorneys, that failure to ensurethat the claims agent receives both a proof of claim and a PITWDaddendum before the deadline may result in those claims beingforever barred by the court. Completed forms should be submittedto claims agent Donlin Recano, not filed with the bankruptcycourt.

"As this critical deadline approaches, we are alerting victims aswell as their attorneys that to preserve their legal rights, thetime to act is now," said Thomas Sobol, lead counsel of thePlaintiffs' Steering Committee. "Failure to submit a claim byJanuary 15 could cause the court to forever bar claims againstNECC or other wrongdoers who may be liable for damages resultingfrom the meningitis outbreak."

The 2012 outbreak of fungal meningitis infections was the worstsuch outbreak in U.S. history. The CDC ultimately recorded 64deaths and 751 cases of fungal meningitis in 20 states, linked toallegedly tainted injections manufactured and distributed by NECC.

Following the outbreak, hundreds of lawsuits were filed, allegingthat NECC and affiliated companies ignored the most basic safetyprocedures in its facilities, resulting in the tainted injections.The company filed for bankruptcy in December of 2012.

New England Compounding Pharmacy Inc., filed a Chapter 11 petition(Bankr. D. Mass. Case No. 12-19882) in Boston on Dec. 21, 2012,after a meningitis outbreak linked to an injectable steroid,methylprednisolone acetate ("MPA"), manufactured by NECC, killed39 people and sickened 656 in 19 states, though no illnesses havebeen reported in Massachusetts. The Debtor owns and operates theNew England Compounding Center is located in Framingham, Mass. InOctober 2012, the company recalled all its products, not justthose associated with the outbreak.

Paul D. Moore, Esq., at Duane Morris LLP, in Boston, has beenappointed as Chapter 11 Trustee of NECC. He is represented by:

The Defendants' conduct has harmed consumers, including thePlaintiff and a class of similarly situated individuals, who paidmore for Excedrin Migraine than they would have paid for ExcedrinExtra Strength, Ms. Yingst contends.

Novartis AG, the parent company of the Novartis group of entities,is a multinational pharmaceutical company headquartered in Basel,Switzerland. Novartis Corporation is a New York corporationheadquartered in East Hanover, New Jersey. Novartis Corporationis the U.S. arm of Novartis AG and oversees research anddevelopment, manufacturing, sales, and marketing of pharmaceuticalproducts, including Excedrin Migraine and Excedrin Extra Strength.

Novartis Consumer Health, Inc. is a Delaware corporationheadquartered in Parsippany, New Jersey. Novartis ConsumerHealth, Inc. engages in research and development, manufacturing,sales, and marketing of over-the-counter pharmaceutical products,including Excedrin Migraine and Excedrin Extra Strength.

The amended action seeks to recapture pay, plus appropriatedamages, for all Plaintiffs and the many thousands of similarlysituated employees in the FLSA collective action and variousstate-law class actions as a result of Defendants' failure to paywages for off-the-clock work required by Outback.

"This lawsuit seeks to vindicate the simple proposition thatemployees should be paid for their work," said Don Springmeyer --dspringmeyer@wrslawyers.com -- the Wolf Rifkin Shapiro Schulman &Rabkin attorney who filed the suit. "Outback Steakhouses run onthe labor of tens of thousands of minimum-wage employees, and itis outrageous that a multi-billion-dollar corporation furthersqueezes those hard working people out of their lawfully-earnedwages."

The suit claims that Outback failed to pay for all hours worked byits employees, failed to pay federal and state minimum wages, andfailed to pay appropriate overtime wages for time worked aboveforty hours per week.

Named Plaintiffs are current and/or former Outback Steakhouseemployees from around the country, including Nevada, New York,Florida, Kansas, Maryland, North Carolina, Ohio, Virginia andIllinois. More than 125 current and former Outback employeesalready have filed their consents-to-sue in the Nevada federalcourt case.

Bloomin' Brands Inc., the parent company of Outback Steakhouse,had gross receipts of more than $3 billion dollars last year.Bloomin' CEO Elizabeth Smith was rewarded with a $20 million bonusin 2013, and according to company filings she maintains stockoptions worth another $50 million.

For wage and hour complaints by employees against OutbackSteakhouse, call 1-866-738-5811.

About WRSS&R

Comprised of a team of over 40 attorneys, WRSS&R --http://www.wrslawyers.com/-- specializes in all areas of law. Offering top quality legal expertise at a reasonable cost, WRSS&Rhas garnered a national reputation as a leading law firm. Theiroffices are located in Los Angeles, Las Vegas, and Reno, Nev.

For media inquiries or to arrange an interview, please contactTravis Culver at 323-937-1951 or travis@tylerbarnettpr.com

PFIZER INC: Lipitor Plaintiffs May Face Statute of Limitations--------------------------------------------------------------Cliff Rieders of Rieders, Travis, Humphrey, Harris Waters &Waffenschmidt reports that many female patients and potentialplaintiffs who took the cholesterol-lowering drug Lipitor(atorvastatin) and subsequently developed Type 2 diabetes could befacing a deadline, or statute of limitations on their ability topursue a product liability case against Pfizer for failure toprovide adequate warnings about the potential side effects ofLipitor.

Pfizer is currently facing a growing number of Lipitor diabetesclaimed filed by women in state and federal courts, all involvingallegations that otherwise healthy women with BMI under 30developed diabetes after using the medication to lower theircholesterol.

However, all lawsuits are subject to a statute of limitations, ordeadline, for which a claim can be filed in court. For example,many states, such as Pennsylvania, have a two year statute oflimitations after an individual discovers or could have discovereda link between a prescription medication and an injury.

For cases where women were diagnosed with diabetes more than twoyears ago, Pfizer may seek to argue that the statute oflimitations for their claims began to run in February 2012 whenwarnings were added to the Lipitor warning label for the firsttime informing users about the potential impact the medication mayhave on blood sugar levels. Thus, the statute of limitations oftwo years would expire in February 2014. However, plaintiffs arelikely to argue that Pfizer's warning was inadequate to triggerthe statute of limitations. However, this issue is likely toresult in many new Lipitor complaint filings in the next severalweeks so that plaintiffs can ensure that a subsequentinterpretation of the Lipitor warning and statute of limitationsdoes not result in their claims being time barred.

PLYMOUTH: 100+ People Died From Asbestos Exposure-------------------------------------------------Graeme Demianyk, writing for Plymouth Herald, reports that morethan 100 people from the Plymouth area have died in the last fiveyears from asbestos exposure, figures have revealed.

Legislation is currently going through Parliament to provide acompensation package for sufferers of the fatal lung diseasemesothelioma, which is caused by inhaling asbestos.

The number of sufferers is particularly high in cities such asPlymouth because of asbestos-related activities in the past atDevonport Dockyard.

An exposure of as little as one or two months can result in theonset of mesothelioma between 15 and 60 years later.

Figures placed in the House of Commons library show mesotheliomawas the underlying cause of 2,139 deaths last year.

Some 396 deaths were recorded in Devon and Cornwall, with around120 in the four constituencies covering Plymouth, between 2008 and2012.

There were 34 mesothelioma-related deaths in Plymouth Sutton andDevonport, 31 in South West Devon, 28 in Plymouth Moor View and 27in South East Cornwall.

The Tiverton and Honiton and Torridge and West Devonconstituencies both recorded 27 deaths.

Other parts of the country with large dockyards witnessed a highnumber of deaths, including Barrow-in-Furness in Cumbria, where 60deaths were recorded over the period.

The legislation is designed to compensate victims of mesotheliomawho have been unable to trace the employer who exposed them to thedeadly asbestos dust.

Alison Seabeck, Labour MP for Plymouth Moor View, has welcomednews of the GBP350 million deal, but warned the level ofcompensation is set far lower than that attainable when a claimantcan trace their insurer. She also has concerns that the decisionto set a cut-off date two years from the launch of Labour'sconsultation in 2010 has denied compensatory justice to the morethan 700 people who have died in this time.

She said: "It is a ghastly disease and there are many families inPlymouth we are trying to help.

"It has been decades trying to get some justice for those affectedwho have not been able to trace the insurers of the companies theyworked for."

"There is progress, but there is more to do to secure justice forsufferers and their families."

Asbestos was used in shipbuilding, construction and the automotiveindustry. Carpenters, joiners, plumbers and heating engineers areat particular risk. Asbestos was in widespread use before beingbanned completely in 1999.

Victims and their families have, up to now, been able to claimdamages under two pieces of legislation but the sums paid have notgenerally exceeded GBP20,000.

Under the proposed new fund, which must receive parliamentaryapproval, claimants will be entitled to 75 per cent of the averagesettlement paid out in civil actions relating to mesothelioma,expected to be about GBP115,000. Claimants will have todemonstrate that they were negligently exposed to asbestos at workand are unable to claim compensation because they cannot trackdown a liable employer or insurer.

It will be paid for by a levy on insurance companies which provideemployers' liability and is expected to cost the insuranceindustry GBP300million over the next ten years while helping morethan 300 sufferers a year.

But campaigners say the scheme does not go far enough incompensating victims, and thousands who suffer from other asbestosrelated diseases, such as asbestosis and pleural thickening, willnot receive anything.

"The Court finds that Plaintiffs and all putative class memberssubscribe to Providence's group plan. The group plan contains anidentical provision -- the Developmental Disability Exclusion --that Providence concedes will continue to be applied to requestsfor ABA therapy going forward unless enjoined by this Court,"Simon wrote.

"All putative class members, therefore, have an interest inreceiving an answer to the question of whether the DevelopmentalDisability Exclusion is legal."

The decision came on Christmas Eve, much like Santa Claus, foradvocates of applied behavior analysis for autism, and it willallow their attorney to represent hundreds of children who haveinsurance through the Catholic health provider Providence, notjust the two named in the lawsuit.

"[Simon] appeared to go item by item in the requirements ofgetting a class certified and found we had met every requirement,"said Keith Dubanevich, the lead attorney for the plaintiffs.

The two sides debated their positions on whether the case shouldbe limited to the individuals named in the suit or a larger classof people in early December.

Mr. Dubanevich told The Lund Report that his legal team is onlyseeking injunctive relief, not monetary damages for the deniedcoverage. If the plaintiffs win there case, Providence wouldeither have to pay for the treatment or find another rationale forexcluding applied behavior analysis from its menu of coverageoptions. It would no longer be able to count applied behavioranalysis treatment for autism spectrum disorder as an uncovereddevelopmental disability and refuse to pay for the therapy.

The class-action allows the court decision to apply to anyonecovered by a federally regulated insurance plan, as well as thetwo children named in the case.

Providence Health Plan is the only insurer in Oregon to try thistactic to get out of paying for applied behavior analysis, but aProvidence defeat could deter other insurance companies fromasserting the same denial. A victory by Providence likewise couldencourage other insurers to follow suit and deny care on the samegrounds.

A spokesman for Providence declined to comment on the lawsuit, butnoted that Providence Health Plan covers a large number of autismtreatments, just not applied behavior analysis.

"Providence Health Plan currently provides coverage for a range ofautism spectrum disorder treatments, including individualpsychotherapy; speech, language and communication therapy;augmentative communication; extended EEG [electroencephalography]monitoring; and group and/or family therapy," wrote Providencespokesman Gary Walker, in an email to The Lund Report.

Applied behavior analysis is a wide spectrum of treatments rootedin behavioral psychology that work to change problematic behaviorsin autistic youth and help children learn to relate to otherpeople. If started before a child enters school, the therapy canbe very intensive and works on reversing much of the disability.With older kids or adults, the therapy techniques focus primarilyon eliminating the worst behaviors.

Mr. Walker said that Providence would begin covering ABA a yearearlier than the law requires. With that the case, it's somewhatpuzzling that Providence has chosen to wage a court battle ratherthan agree to pay for the desired treatment. Fewer than 10families with Providence Health Plan have attempted to seek ABAtreatment for their children. In two earlier cases, Providencelost appeals when an independent physician opined that thetreatment was not experimental.

Mr. Dubanevich said that both sides would submit motions to thecourt in January and he expected a court hearing beforeJudge Simon on the merits of the case this spring, barring asettlement.

REDBOX AUTOMATED: Hartford Says It Has No Duty to Defend Suit-------------------------------------------------------------Hartford Insurance claims in Federal Court that it has no duty todefend Redbox in a class action accusing it of failing to make itsrental boxes accessible to the deaf, according to Courthouse NewsService.

The case is Hartford Fire Insurance Company, et al. v. RedboxAutomated Retail, LLC, Case No. 1:14-cv-00063, in the UnitedStates District Court for the Northern District of Illinois.

SENSA PRODUCTS: To Settle FTC's Deceptive Ad Charges for $26.5MM----------------------------------------------------------------The Federal Trade Commission on Jan. 7 announced a law enforcementinitiative stopping national marketers that used deceptiveadvertising claims to peddle fad weight-loss products, from foodadditives and skin cream to dietary supplements.

The agency also announced charges against the marketers of twoother products that made unfounded promises:

L'Occitane, which claimed that its skin cream would slimusers' bodies but had no science to back up that claim, and HCG Diet Direct, which marketed an unproven human hormone thathas been touted by hucksters for more than half a century as aweight-loss treatment.

And it announced a partial settlement in a fourth case, LeanSpa,LLC, an operation that allegedly deceptively promoted acai berryand "colon cleanse" weight-loss supplements through fake newswebsites.

"Resolutions to lose weight are easy to make but hard to keep,"said Jessica Rich, Director of the FTC's Bureau of ConsumerProtection. "And the chances of being successful just bysprinkling something on your food, rubbing cream on your thighs,or using a supplement are slim to none. The science just isn'tthere."

In total, the weight-loss marketers will pay approximately $34million for consumer redress. In addition to the $26.5 million tobe paid by Sensa, L'Occitane, Inc. will pay $450,000, and theLeanSpa settling defendants will surrender assets totalling anestimated $7.3 million. The judgment against the HCG Diet Directdefendants is suspended due to their inability to pay.

Refund administration for consumer redress takes time, and the FTCis in the process of determining how best to provide redress ineach case. When information becomes available regarding consumerrefunds in these cases, it can be found here.

Sensa Products, LLC

The FTC charged that California-based Sensa Products, LLC, itsparent, and two individuals deceptively advertised that thepowdered food additive Sensa enhances food's smell and taste,making users feel full faster, so they eat less and lose weight,without dieting, and without changing their exercise regime. Thedefendants did not have competent and reliable scientific evidenceto support these claims, according to the FTC's complaint.

The defendants typically charge $59 plus shipping and handling fora one-month supply of Sensa. They provide the powder in twelveflavors, and have marketed it through radio and printadvertisements, retail chains such as Costco and GNC, apromotional book, television ads and infomercials, Home ShoppingNetwork, ShopNBC, telemarketing, and the Internet. U.S. sales ofSensa between 2008 and 2012 totaled more than $364 million,according to the complaint.

The FTC also charged that the defendants failed to disclose thefact that some consumers were compensated for their endorsementsof Sensa. In some instances, compensation included payments of$1,000 or $5,000, and trips to Los Angeles.

The agency also alleged that Dr. Hirsch -- who conducted two ofthe studies cited in the ads and wrote a promotional book aboutSensa -- gave expert endorsements that were not supported byscientific evidence, and provided the means for the otherdefendants to deceive consumers. The defendants falsely cited Dr.Hirsch's studies as clinical proof that consumers could losesubstantial weight without dieting or exercise. The defendantsalso allegedly misrepresented their role in a third study.

Under the order, the defendants are barred from making weight-lossclaims about dietary supplements, foods, or drugs, unless theyhave two adequate and well-controlled human clinical studiessupporting the claims; making any other health-related claimunless it is supported by competent and reliable scientific tests,analyses, research, or studies; and misrepresenting any scientificevidence.

They also must disclose any material connections with theendorsers of a product or program, as well as with anyoneconducting or participating in a study of the product or program.

Dr. Hirsch is also barred under the order from providing expertendorsements unless he relies on both competent and reliablescientific evidence and his own expertise. And he is barred fromproviding to others studies, promotional materials, endorsements,or other means for deceiving consumers.

The order imposes a $46.5 million judgment against the companies,and requires them to pay $26.5 million, with the rest suspendeddue to their inability to pay. If it is later determined that thefinancial information the defendants gave the FTC was false, thefull amount of their judgment will become due.

L'Occitane launched an advertising campaign in 2012 claiming thatAlmond Beautiful Shape could "trim 1.3 inches in just 4 weeks,"and that it was a "cellulite fighter;" and that Almond ShapingDelight has "clinically proven slimming effectiveness," and will"visibly refine and reshape the silhouette, to resculpt and tonethe body contours." L'Occitane's ads also claimed that bothproducts could produce a "noticeably slimmer, firmer you . . . (injust 4 weeks!)."

The proposed settlement bans the company from claiming that anyproduct applied to the skin causes substantial weight or fat lossor a substantial reduction in body size; prohibits the companyfrom claiming that any drug or cosmetic causes weight or fat lossor a reduction in body size, unless the claim is backed by twoadequate and well-controlled human clinical studies; requires thatany claim that a drug or cosmetic reduces or eliminates celluliteor affects body fat or weight be backed by competent and reliablescientific evidence; and prohibits the company frommisrepresenting the results of any test, study, or research, orthat the benefits of a product are scientifically proven.

HCG Diet Direct

Lose 40 pounds in 40 days "The Arizona-based company HCG DietDirect, and its director Clint Ethington, marketed liquidhomeopathic hCG drops by falsely promising they would causeconsumers to rapidly lose substantial weight. The defendants haveagreed to enter into a settlement with the Federal TradeCommission that would bar such deceptive claims in the future.

The defendants sold HCG Diet Direct Drops, a diluted liquid formof human chorionic gonadotropin -- a hormone produced by the humanplacenta that has been falsely promoted for decades as a weight-loss supplement.

In November 2011, HCG Diet Direct and 6 other companies receivedwarning letters issued jointly by FTC and FDA staff, advising thattheir hCG products are mislabeled drugs under the FDA Act, andwarning that it is unlawful under the FTC Act to make weight-lossclaims that are not substantiated by competent and reliablescientific evidence.

In advertisements on YouTube videos, through product packaging,and in statements and testimonial videos posted on the companywebsite, the company claimed that consumers would rapidly losesubstantial amounts of weight (up to one pound a day) by placing ahighly diluted concentration of homeopathic HCG solution undertheir tongues before meals and adhering to a very low caloriediet. According to the FTC, the company and its director alsomade several other false and unsupported claims, including thatthe product was FDA approved, and failed to disclose thatendorsers appearing in some of its advertisements werecompensated, or were related to a company employee or officer.The company charged approximately $35 for a 7-day supply or $200for a 40-day supply of their HCG Diet Direct Drops, with salestotaling more than $3 million -- mostly between January 1, 2009,and late 2012.

The proposed settlement bars HCG Diet Direct and Ethington fromclaiming or assisting others in claiming that any dietarysupplement, food, or drug causes weight loss, or that consumerswho use the product can expect the same results as endorsers --unless the claim is non-misleading, and unless the defendants haveat least two adequate and well-controlled human clinical studiesto substantiate their advertising claims.

The order also bars the two defendants from making any otherhealth claims about any dietary supplement, food, or drug unlessthey have competent and reliable scientific evidence;misrepresenting the results of scientific research; representingthat a product is FDA-approved when it is not; and failing todisclose that endorsers are related to company officials or thatthey are being compensated for their testimonials, if that is thecase.

The order imposes a $3.2 million judgment, representing all salesof HCG Diet Direct Drops, which is suspended based on thedefendants' inability to pay. If it is determined that thefinancial information the defendants gave the FTC was untruthful,the full amount of the judgment will become due.

LeanSpa, LLC

The FTC has reached a settlement requiring LeanSpa principal BorisMizhen and three companies he controls to surrender cash, realestate and personal property totaling approximately $7 million.Mizhen's wife, Angelina Strano -- charged as a relief defendantwho accepted money from the scheme but did not activelyparticipate in it -- will surrender nearly $300,000.

In December 2011, the FTC and the state of Connecticut shut downMizhen's operation, charging it with using fake news websites topromote acai berry and "colon cleanse" weight-loss products,making deceptive weight-loss claims, and telling consumers theycould receive free trials of the products by paying the nominalcost of shipping and handling. The FTC alleges that many consumersended up paying $79.99 for the trial, and for recurring monthlyshipments of products that were hard to cancel.

The FTC charged the defendants with violating Sections 5 and 12 ofthe FTC Act, the Electronic Funds Transfer Act, and Regulation E,and the state of Connecticut alleged that the defendants violatedthe Connecticut Unfair Trade Practices Act.

The proposed settlement bans the defendants from billing consumersfor products or services by automatically charging them on arecurring basis unless they opt out. And it prohibits thedefendants from misrepresenting or failing to disclose facts aboutthe products that involve costs, charges, terms for refunds,endorsements, and trial supplies. The order also prohibits thedefendants from falsely claiming that any product can cause rapidand substantial weight loss without the need for dieting orincreased exercise.

The defendants also are required to have at least two humanclinical trials to support any weight loss claims they make aboutthe products they sell, and to have competent and reliablescientific evidence for any other health claims. They areprohibited from claiming that products are clinically proven whenthey are not, and from violating the Electronic Funds TransferAct.

Litigation continues against defendants that acted as LeanSpa'saffiliate network, and two other relief defendants.

Consumers should carefully evaluate advertising claims for weight-loss products. For more information, see the FTC's guidance forconsumers of products and services advertised for Weight Loss &Fitness. The FTC also has new guidance for media outlets onspotting false weight-loss claims in advertising.

The FTC is a member of the National Prevention Council, whichprovides coordination and leadership at the federal levelregarding prevention, wellness, and health promotion practices.This initiative advances the National Prevention Strategy's goalof increasing the number of Americans who are healthy at everystage of life.

The Commission votes authorizing the staff to file the complaintsand approving the proposed consent decrees for Sensa Products,LLC; and HCG Diet Direct and Clint Ethington were both 4-0. TheFTC filed the complaint and proposed consent decree for Sensa inthe U.S. District Court for the District of Illinois on January 7,2013, and for HCG Diet Direct in the U.S. District Court for theDistrict of Arizona on January 7, 2013. The proposed consentdecrees are subject to court approval.

NOTE: The Commission files a complaint when it has "reason tobelieve" that the law has been or is being violated and it appearsto the Commission that a proceeding is in the public interest.Consent decrees have the force of law when approved and signed bythe District Court judge.

The Commission vote to accept the consent agreement packagecontaining the proposed consent order for public comment in theL'Occitane, Inc. case was 4-0. The FTC will publish a descriptionof the consent agreement package in the Federal Register shortly.The agreement will be subject to public comment for 30 days,starting January 7, 2014 and continuing through February 6, 2014,after which the Commission will decide whether to make theproposed consent order final. Interested parties can submitwritten comments electronically or in paper form by following theinstructions in the "Invitation To Comment" part of the"Supplementary Information" section. Comments in electronic formshould be submitted using the following Web link:https://ftcpublic.commentworks.com/ftc/loccitaneconsent, andfollowing the instructions on the web-based form. Comments inpaper form should be mailed or delivered to: Federal TradeCommission, Office of the Secretary, Room H-113 (Annex D), 600Pennsylvania Avenue, N.W., Washington, DC 20580. The FTC isrequesting that any comment filed in paper form near the end ofthe public comment period be sent by courier or overnight service,if possible, because U.S. postal mail in the Washington area andat the Commission is subject to delay due to heightened securityprecautions.

NOTE: The Commission issues an administrative complaint when ithas "reason to believe" that the law has been or is beingviolated, and it appears to the Commission that a proceeding is inthe public interest. When the Commission issues a consent orderon a final basis, it carries the force of law with respect tofuture actions. Each violation of such an order may result in acivil penalty of up to $16,000.

Commissioner Ohlhausen and Commissioner Wright have issuedseparate statements pertaining to these matters, as well as to theseparate matter of GeneLink; Chairwoman Ramirez and CommissionerBrill issued a joint statement pertaining to GeneLink.

The Federal Trade Commission works for consumers to preventfraudulent, deceptive, and unfair business practices and toprovide information to help spot, stop, and avoid them. To file acomplaint in English or Spanish, visit the FTC's online ComplaintAssistant or call 1-877-FTC-HELP (1-877-382-4357). The FTC enterscomplaints into Consumer Sentinel, a secure, online databaseavailable to more than 2,000 civil and criminal law enforcementagencies in the U.S. and abroad. The FTC's website provides freeinformation on a variety of consumer topics.

Shell Rapid Lube, LLC is a domestic limited liability company thathas been administratively dissolved, but has continued to dobusiness. The owner of Shell Rapid Lube, LLC is Shane Stricklandand Shane Strickland is now doing business as Shell Rapid Lube,headquartered in Holly Springs, Mississippi.

In formulating the terms of the Proposed Transaction, LMCA,through its representation on, and effective control anddomination of Sirius' Board of Directors, improperly usedconfidential, non-public information provided to the Board bySirius management, the Plaintiff alleges. The Plaintiff adds thatin pursuing the Proposed Transaction, each of the Company'sdirectors and LMCA are required pursuant to their fiduciary dutiesto pursue an acquisition that is fair in both process and price toSirius shareholders, and not breach their duties of loyalty, duecare, independence, good faith and fair dealing.

Sirius is a Delaware corporation headquartered in New York.Sirius broadcasts music, sports, entertainment, comedy, talk,news, traffic and weather channels in the United States on asubscription fee basis through two proprietary satellite radiosystems. Subscribers can also receive certain of the Company'smusic and other channels over the Internet, including throughapplications for mobile devices.

LMCA is a Delaware corporation headquartered in Englewood,Colorado. LMCA holds 53.4% of Sirius' outstanding common stockand is a majority shareholder of Sirius. The IndividualDefendants are directors and officers of the Company.

SKECHERS USA: Faces "Arns" Suit for Misrepresenting Shape-Ups-------------------------------------------------------------Tammy Arns as Guardian and next of friend of K.A., a Minor v.Skechers, U.S.A., Inc., Skechers, U.S.A., Inc., II and SkechersFitness Group, Case No. 3:13-cv-01269-TBR (W.D. Ky., December 31,2013) alleges that in addition to misrepresenting the efficacy andhealth benefits of Skechers Shapeups, Skechers also made numerousmisrepresentations about the safety of Shape-ups, which served tolull consumers into believing that these shoes were safe despitetheir unbalanced appearance.

Skechers U.S.A., Inc., and Skechers U.S.A., Inc. II, are Delawarecorporations headquartered in Manhattan Beach, California.Skechers Fitness Group is a trademarked subsidiary of SkechersU.S.A., Inc. II with its principle place of business in ManhattanBeach, California. Skechers is a shoe company that manufacturestoning shoes, including Skechers Shape-ups and Tone-ups. Theseshoes have a pronounced rocker bottom sole. Skechers markets andpromotes its toning shoes as footwear that will provide countlesshealth benefits including improved cardiac function and orthopedicbenefits.

STAR SCIENTIFIC: Judge Set to Hear Shareholder Suit---------------------------------------------------The Associated Press reports that a federal judge was set to heara motion to dismiss a lawsuit claiming Star Scientific misledinvestors. A hearing was scheduled for Tuesday, Jan. 7, in U.S.District Court in Richmond.

The shareholder suit alleges that the dietary supplement makertrumped up claims for its anti-inflammatory supplement and madefalse claims about the company's business. The suit also claimsStar Scientific delayed telling investors about a federalinvestigation focused on transactions involving its securities.The company has since said it doesn't expect to be prosecuted.

A federal appeals court reversed the dismissal of a productliability lawsuit filed against Stryker over 1 of its pain pumps,ruling that a lower court should have given the plaintiff a chanceto earn an exception to the statute of limitations.

Mark Milton sued Stryker in the U.S. District Court for SouthernTexas in 2011, 6 1/2 years after the Stryker pain pump was usedfollowing shoulder surgery, according to court documents.Although he complained to his surgeon of continued pain after theprocedure, he was told that such pain is normal.

"Though Milton alleges that he 'continued to have problems with[his] shoulder' for years after the surgery, he did not seekfurther medical attention until May 27, 2009, when Dr. Bryandiagnosed him as having complete loss of articular cartilage inthe shoulder, consistent with glenohumeral chondrolysis.Mr. Milton asserts that 'he had no idea that it was possible thepain pump caused increased damage to his shoulder' until thisdiagnosis in 2009, when Dr. Bryan told him that the condition waslinked to use of the pain pump," according to the documents.

The district court granted Stryker's bid to have the case tossedbecause the lawsuit was filed outside of the 2-year statute oflimitations. Mr. Milton appealed to the U.S. Court of Appeals forthe 5th Circuit, arguing that the discovery rule -- which "defersaccrual of a cause of action until the plaintiff knew or,exercising reasonable diligence, should have known of the factsgiving rise to the cause of action," according to the documents --should set the statute of limitations at the point when he learnedof the chondrolysis.

TALBOTS INC: Judge Approves $237,500 Plaintiffs' Class Counsel Fee------------------------------------------------------------------Ronald Barusch, writing for The Wall Street Journal, reports thatearlier in December, Delaware Chancellor Leo E. Strine, Jr.approved a $237,500 fee to plaintiffs' class counsel in a casechallenging the takeover of Talbots Inc., despite saying at thehearing "The social utility of cases like this continuing to beresolved in this way is dubious."

Chancellor Strine approved the settlement and the six figure legalfee because he said it was not his place to reject a negotiatedsettlement, and he indicated he wanted to respect the desire ofthe defendants to get closure.

The Wall Street Journal noted that in the first three quarters of2013, 98% of all deals valued over $500 million have drawnlawsuits -- an average of six per deal. Mr. Barusch says almostnone of those cases will even go to trial. Those that thedefendants cannot get dismissed at an early stage will be settled,frequently for nothing more than a bit of additional disclosure.

"This is what happened in the Talbots case. What did ChancellorStrine think of the additional disclosure Talbots made to settlethe suit? 'I cannot get anywhere close to finding that thesethings are a material disclosure,' he said," Mr. Barusch wrote.

As the plaintiffs' lawyer presented their settlement and requestfor a fee, the lawyer argued that one of the "main things" theplaintiffs got from the settlement was disclosure that one analystthought the potential value of Talbots was 33% above the priceTalbots was selling for.

Chancellor Strine asks, apparently somewhat incredulously, whetherthat analyst's projection (which Chancellor Strine latercharacterizes as the one bullish perspective where "the balance ofthe information, to be honest, confirms the fairness of thedeal.") was already in the market. It was, the plaintiffs'counsel acknowledged. And in fact disclosures rarely containprojections prepared by analysts who are not involved in the deal.

According to Mr. Barusch, these kind of no-payment settlements aregood for almost but not quite everyone. The buyer and the companyit bought get off the hook and avoid the additional expense oflitigation, which would be much larger than the plaintiffs' legalfees. The plaintiffs' lawyers get paid without doing a lot ofwork that a full-blown trial would require. Before the memorandumof understanding for the settlement was entered into in this case,plaintiffs' counsel said it had put in about 500 hours; that gavethe lawyers about $475 per hour pre-settlement. And perhaps mostimportant of all, the directors and officers get a broad releaseso no one can challenge the deal in the future even if evidence ofa real case were to emerge.

In fact the only people who don't seem to benefit are theshareholders. Ultimately shareholders foot the bill and are boundby the releases. Although the expenses of the litigation areborne by the buyer, when a buyer prices a deal, it has to expectpaying these amounts when 98% of all deals are challenged bylawsuits, according to the Journal. And in this deal, theplaintiffs' lawyer indicated at the hearing that his side hadconcluded that the price appeared to be adequate before the tenderoffer closed so it's not clear what could possibly have beenaccomplished by pursuing this case.

Chancellor Strine apparently thought the $237,500 fee he approvedwas generous. He said "If it weren't clearly negotiated I couldhave easily given 50,000, 75,000, 100,000 for this."

"I realize the Chancellor is in a tough spot here, not liking thislitigation but mindful of defendants' desire to settle it and moveon. Plus, I am sure he is concerned that if he gets really toughon plaintiffs' lawyers junk settlements, they will take theircases to other jurisdictions where the results could be even moreexpensive for shareholders," Mr. Barusch said.

"But something has to give here. Perhaps if more such cases, evennegotiated settlements, were rejected outright, plaintiffs'lawyers would be less likely to pursue worthless cases in thefirst place. At the very least, no legal fees should be payableunless there is tangible benefit to shareholders who suffered fromwrongful conduct."

TARGET CORP: Removes "Due Fratelli" Class Suit to N.D. Illinois---------------------------------------------------------------Target Corporation removed the purported class action lawsuitstyled Due Fratelli, Inc., Individually, and on behalf of allothers similarly situated v. Target Corporation, Case No. 13 CH28094, from the Circuit Court of Cook County, Illinois, ChanceryDivision, to the United States District Court for the NorthernDistrict of Illinois. The District Court Clerk assigned Case No.1:13-cv-09336 to the proceeding.

The action is a putative class action against Target on behalf ofIllinois persons and entities, who "paid monies to Target using adebit or credit card at one of Target's retail stores in exchangefor goods or services between November 27, 2013 and December 15,2013." The Plaintiff alleges that Target failed to safeguardcustomers' personally identifiable information, which includesnames, credit and debit card numbers, card expiration dates, andthe three-digit security codes located on the backs of credit anddebit cards.

It is estimated that more than 40 million accounts werecompromised. The latest class-action lawsuit was filed Dec. 30 onbehalf of Alabama State Employees Credit Union on behalf of theplaintiffs against defendant Target Corporation.

The class-action lawsuit seeks compensation for financial lossesresulting from defrauded deposits of financial institution membersand customers, as well as costs associated with closing accounts,reissuing new checks, debit cards and credit cards as a result ofTarget's data breach.

"Because Target failed to maintain adequate computer data securityof customer credit and debit card information, it exposed millionsof people to the risk of fraud and identity theft, and violatedtheir privacy rights," said Mr. Beasley. "Target could have takensteps to ensure the safety of its information technology systems.Instead, people were left scrambling at the holiday season, unsureof their financial security."

Target publicly announced Dec. 20, 2013, that it had been hit by awide-reaching security breach that compromised millions of cardholder accounts. The retailer reported the hackers had access tocredit and debit card holders' names, card numbers and the three-digit security number on the card. On Dec. 27, 2013, Targetadmitted that it had confirmed that encrypted personalidentification numbers (PINs) also were stolen.

The lawsuit was filed in the United States District Court, MiddleDistrict of Alabama, Northern Division. Beasley Allen filed aclass-action lawsuit on Dec. 20 on behalf of consumers whoseinformation was compromised.

"I've heard this all the time," he said. "It's almost an ignorantview of how it works."

Mr. Phillips, whose offices are in Dartmouth, is representing infederal court in Boston a South Easton woman, Meghan Derba, who isone of the estimated 40 million Target customers whose personalcredit and debit card data was stolen by unidentified evilmasterminds during the Christmas shopping season.

The data is now being sold on the black market for anywhere from$20 to $100 per account, according to various sources. Target isbringing in forensic computer experts, Congress is rumbling aboutinvestigations, and federal district courts across the land areseeing a flurry of class action lawsuits like this one.

They're accusing the fourth-largest retailer, with 36 stores inMassachusetts, of negligence, negligent misrepresentation, andbreach of implied contract. At least three lawsuits have beenfiled in Massachusetts alone, and the number only promises to getlarger.

To Mr. Phillips, the attorneys and plaintiffs are stepping into avoid created by a near complete lack of government oversight ofdata handling. "You have to understand that in this particulararea there is no regulation of gathering data at such a rapidpace. There's no one overseeing or regulating it," he said.

The damage being caused by the data breach is nearly impossible topredict. Mr. Phillips said he thinks crime networks in foreigncountries are behind this and it's not likely they'll be caught.

That leaves Target to be the target of class action suits, whichlikely will be consolidated and moved to a small number of statesas "multi-district litigation."

Class action suits in the past have sometimes been funneling moneyonly to the lawyers, with the harm done to consumers beingcompensated by a cheesy discount coupon or a piddling amount ofcash. But in the past few years, Mr. Phillips said, the courtshave been much more vigilant about the settlements beingpresented, much more skeptical about coupons. The courts, hesaid, want meaningful restitution.

And with this one, people are likely to be demanding a lot morethan a store coupon or a small check. Look at his client, hesaid. Ms. Derba, he said, has not had her identity stolen -- atleast not yet. But she, like millions of people, will have totake the time and effort to obtain new cards while they policetheir accounts, checking for fraudulent transactions for amountsthat might be too small to notice, $1.99 as an example.

Many will have their accounts cleaned out and they will bouncechecks, sometimes with a domino effect, then dealing withoverdraft penalties and damaged credit ratings.

"The folks whose data was stolen shouldn't have to incur out-of-pocket expenses," Mr. Phillips said. But they will: bank chargesand credit monitoring services, possibly for many years, he said.

Speaking of many years, Mr. Phillips said that the federal courtswill take anywhere from 18 months to four years to resolve thelawsuits. It's a cloud that will hang over Target for a long,long time.

TREX CO: Class Action Settlement Gets Final Court Approval----------------------------------------------------------Trex Company, Inc., the world's largest manufacturer of high-performance wood-alternative decking and railing products,announced that on December 16, 2013, the U.S. District Court forthe Northern District of California granted final approval of asettlement that resolves a nationwide class action lawsuitalleging certain misrepresentations and defects in Trex'sfirst-generation composite products relating to mold growth andcolor issues. The claim resolution process, the settlementagreement and class notice are available onhttp://www.trex.com/legal/2013classactionsettlement.aspx

"We are pleased to have a final resolution of this matter, withterms we feel are fair to both Trex and our consumers"

Under the terms of the settlement, Trex will provide to qualifiedclaimants a one-time cash payment or the opportunity to receiveother relief, including a rebate certificate on its newer-generation shelled products (Trex Transcend(R) and TrexEnhance(R)). This relief is available for any qualified claimantwho purchased first-generation Trex composite product betweenAugust 1, 2004 and August 27, 2013 having a certain level of moldgrowth, color fading or color variation, and who meets certainother requirements as set forth in the settlement agreement.

"We are pleased to have a final resolution of this matter, withterms we feel are fair to both Trex and our consumers," saidRonald W. Kaplan, chairman, president and CEO of Trex. "Thissettlement allows Trex to focus its attention on delivering ournext generation of award-winning, high-performance outdoor livingproducts."

The cost to Trex under the settlement is capped at $8.25 millionplus $1.475 million in attorneys' fees to be paid to thePlaintiffs' counsel.

About Trex Company

Trex Company -- http://www.trex.com-- is the world's largest manufacturer of high performance wood-alternative decking andrailing, with more than 20 years of product experience. Stockedin more than 6,000 retail locations worldwide, Trex outdoor livingproducts offer a wide range of style options with fewer ongoingmaintenance requirements than wood, as well as a trulyenvironmentally responsible choice.

TURQUOISE HILL: Faces Investor Class Action in New York-------------------------------------------------------The Canadian Press reports that a class action lawsuit thataccuses Turquoise Hill Resources of misleading investors over a3 1/2-year period has been filed in a U.S. district court in NewYork City. The law firm Levi and Korsinsky filed the case onbehalf of those who bought shares in the company between May 14,2010 and Nov. 8, 2013. The case alleges that the mining companymade false and or misleading statements regarding its financialperformance and business prospects and overstated its revenue.The allegations, filed in the U.S. District Court for the SouthernDistrict of New York, have not been proven in court.

Turquoise Hill said in November it would restate its results forthe years ended Dec. 31, 2010, 2011, and 2012, as well as theaffected quarterly financial results following a decision by itsmajority-owned subsidiary SouthGobi Resources to restate itsresults. The SouthGobi restatement was due to a change indetermination of when revenue should be recognized according tointernational accounting standards.

Turquoise Hill said on Dec. 31 it was aware of the complaint andbelieved it was without merit. "We will vigorously defend againstthe complaint," a company spokesman said in an email.

Another case was filed earlier in December by Robbins, Geller,Rudman and Dowd that also accused Turquoise Hill of "materiallyfalse and misleading statements" regarding its financialperformance.

Turquoise Hill is developing the Oyu Tolgoi copper mining complexin Mongolia, including an open pit mine that began production thisyear and an underground portion under development.

The U.S. Department of Agriculture said on Jan. 10 in a newsrelease the product was not sold in retail stores. It wasproduced on Oct. 11 and shipped nationwide for institutional use.

The chicken has been linked to illnesses in a Tennesseecorrectional facility, where seven people got sick and two werehospitalized.

Food containing Salmonella can cause salmonellosis, one of themost common bacterial foodborne illnesses. The most commonsymptoms are diarrhea, abdominal cramps and fever within 12 to 72hours after eating the contaminated product.

The illness usually lasts 4 to 7 days. Most people recoverwithout treatment.

The motions judge in Marshall v. United Furniture WarehouseLimited Partnership held that the pleadings did not disclosecauses of action for breach of warranty or negligence, and foundthat there was insufficient commonality or evidence to certifycommon issues relating to negligent misrepresentation and breachof the Business Practices and Consumer Protection Act ("BPCPA").Background

Starting in March 2003, customers purchasing furniture from UFWstores received vouchers for up to 100% of the value of thefurniture. The vouchers were issued by Consumers Trust (anEnglish entity unrelated to UFW) and could be redeemed for cashwithin a one-week period three years after the purchase date.

In theory, customers who bought furniture from UFW could get alarge percentage -- in some cases, 100% -- of the purchase priceback as a cash payment three years later. In practice, thevoucher program relied on the expectation that many customerswould not remember or would not follow all the steps to cash intheir vouchers. A UFW brochure advertising the vouchers describedthem as a "financial memory test or challenge" for consumers.

In March 2004, the UFW chain was sold to a new corporate entity.The motions judge referred to the corporate defendant whooriginally owned UFW as "Old UFW" and to the acquirors as "NewUFW". New UFW continued to offer the voucher program untilOctober 2004.

In 2005, Consumers Trust went bankrupt, leaving many customerswith vouchers that could no longer be redeemed. One of theputative representative plaintiffs filed a proof of claim in theConsumers Trust bankruptcy for $2,199.95, but received only$18.00. New UFW circulated a notice regarding this bankruptcy tocustomers. In 2006, as a "customer satisfaction measure," New UFWoffered in-store credit for customers who had been issued voucherseither at Old UFW or New UFW stores. New UFW did not, however,offer to redeem the vouchers for cash.

The plaintiffs commenced a proposed class action on behalf of allpersons who received cashable vouchers in connection with thepurchase of goods and services from Old UFW and New UFW. Theirkey claim was that UFW had represented through in-store signage,written brochures, advertisements, sales talk, and through thetext on the vouchers themselves, that UFW was responsible forensuring that the vouchers would be paid out in cash.

Certification Denied

Fisher J. found that the certification criteria set out in s. 4(1)of the British Columbia Class Proceedings Act that there be anidentifiable class and a suitable representative plaintiff weremet. However, Her Honour found that some of the proposed causesof action were improperly pleaded and that the proposed commonissues lacked either commonality or an evidentiary basis. Giventhat the plaintiffs' claims raised few common issues Fisher J.found that a class action was not the preferable procedure for theresolution of the claims and denied certification. Causes of Action

Fisher J. found that the claims in breach of contract or breach ofwarranty, "successor" liability under the BPCPA, and negligencewere all certain to fail.

The plaintiffs argued that UFW had warranted that it wasresponsible for redeeming the vouchers for cash. The vouchertext, however, stated that "Consumers Trust is exclusivelyresponsible for payment" and that the merchant had no suchresponsibility. Fisher J. concluded that the claim really soundedin negligent misrepresentation.

The plaintiffs also sought to hold New UFW liable under the BPCPAfor the alleged deceptive acts or practices of Old UFW, on thebasis that the definition of "supplier" under the BPCPA includesthe successor of a supplier. Fisher J. held that the definitionof a "supplier" in the BPCPA does not create general successorliability. New UFW could only be liable under the Act for theacts of Old UFW if it too had engaged or acquiesced in them.Otherwise, each supplier was responsible for its own acts oromissions.

In addition to pleading various negligent misrepresentations, theplaintiffs had also pleaded a claim in simple negligence, allegingfailure to investigate the financial integrity of the voucherprogram. This claim raised the issue of whether a retailer has aduty of care to all potential customers to properly investigatethe financial strength of an entity with whom it contracts toprovide a sales promotion.

Fisher J. considered this claim an attempt to use tort law toobtain a form of insurance or warranty from the defendants thatConsumers Trust would be able to pay out on the vouchers. HerHonour held that it was plain and obvious that liability innegligence for pure economic loss does not extend that far,referring in particular to cases that held that tort claims foreconomic loss are restricted to dangerous, not just defective,goods.

Common Issues

The principal common issues proposed by the plaintiffs related towhether the defendants had made negligent misrepresentations orengaged in "deceptive acts or practices" as defined in the BPCPA.

Fisher J. noted that whether an act is capable of being deceptivegenerally does not depend on the circumstances of the plaintiffand does not require individual inquiry. Nonetheless, theproposed issue lacked commonality because the plaintiffs alleged along list of deceptive acts and practices arising from differentsources and relating to different aspects of the voucher programand that different customers had been exposed to at differenttimes.

Fisher J. also concluded that there was no common issue regardingdamages under the BPCPA. Each plaintiff would have to prove thathe or she incurred losses in reliance on a deceptive act orpractice. Reliance could not be inferred on a class-wide basisgiven the variety of different alleged misrepresentations, andindividual factors such as whether each plaintiff was ready,willing and able to present the voucher for redemption, andwhether he or she would have bought the goods anyway. Nor couldan aggregate damages award be made without proving each classmember's damage or loss.

The number and variety of alleged representations was also abarrier to any common issue relating to breach of contract orbreach of warranty, since the existence of the contract orwarranty itself would depend on the written materials and ads seenby each class member. It was held that the common issues relatingto negligent misrepresentation suffered from the same fatal flaw.

Conclusion

This case is another illustration of the general rule that classactions based on a specific representation made to an entire classhave at times been certified, but claims based on a variety ofrepresentations made to different persons at different times areunlikely to raise common issues. The case also parallels therecent decision of the Court of Appeal for Ontario in Arora v.Whirlpool Canada LP in which it was held that there is no cause ofaction in negligence for economic loss from an item that isdefective but not dangerous.

UTAH: Class Action Closed Over Illegal Use of Plaintiffs' Names---------------------------------------------------------------Brooke Adams, writing for The Salt Lake Tribune, reports that aclass-action lawsuit was closed on Jan. 2, hours after a Salt LakeCity attorney insisted he had the right to use the names of amarried lesbian couple without their permission in the complaint.

E. Craig Smay named Amy N. Fowler and Pidge Winburn as plaintiffsin the complaint he filed Dec. 27 in U.S. District Court thatlisted the state and The Church of Jesus Christ of Latter-daySaints as defendants.

Fowler and Winburn were married Dec. 23, and the newlyweds werefeatured in a front-page story in The Salt Lake Tribune dayslater. Smay said on Jan. 2 that is where he got their names.

Neither Fowler nor Winburn has ever spoken with Smay, and neitherwas aware he had listed them as plaintiffs in the lawsuit until aTribune reporter informed them. Fowler, an attorney, immediatelyattempted to contact Smay by telephone and email to get theirnames removed from the lawsuit, which they have no interest insupporting.

Fowler was unable to reach Smay, and, on Dec. 31, the couple fileda motion asking the court to dismiss the lawsuit. On Jan. 2,Fowler also filed a complaint about Smay's action with the UtahState Bar.

Smay told the Tribune on Jan. 2 that under federal court rules, hedid not need permission to list the pair as plaintiffs in a class-action lawsuit. He also said he informed Fowler by email that hedidn't need her consent and claimed she "blabbed" to the pressabout the lawsuit.

"I've explained it carefully," he said. "She can file until thecows come home. She's wasting her time and she's wasting mytime."

But Fowler said she had not received any email from Smay and wouldbe "incredibly" surprised if he could legally use their nameswithout permission.

Apparently, she was right.

Fowler said a court clerk told her on Jan. 2 the case had beenclosed. A summary of the case's status available online listedits disposition as "dismissed" and "closed."

Three attorneys -- one a former federal judge -- say Smay was outof line in filing the complaint in the first place.

"To name someone as a plaintiff without their permission is notwhat the rules of procedure allow," said Paul Cassell, aUniversity of Utah law professor and former federal judge. "Youcan file a class action, but the way that is done is you havenamed plaintiffs whom you represent and have permission torepresent. You can't drag someone into a lawsuit without theirpermission claiming to represent them."

Smay said he filed the class-action lawsuit because of the state'songoing efforts to stop gay marriages and eventually have theminvalidated.

"I filed it because I think that what the state, backed by thechurch, is doing is wrong, which the Supreme Court has made clearto them," said Smay, who said he is not LDS or gay. "How wouldyou feel if it were your marriage? You would feel very badly aboutthat. That's infliction of emotional distress that ought not tobe happening."

Smay said he believes U.S. District Court Judge Robert J. Shelbygot it right in his Dec. 20 decision that found Utah's ban onsame-sex marriage was unconstitutional. He filed an amicus briefon Dec. 26 in support of Shelby's refusal to grant the state'srequest for a stay of his ruling.

"The demand for a stay in this case is simply a cruel impositionupon gay people," Smay wrote. "It should be promptly denied."

In addition to Shelby, the 10th U.S. Circuit Court of Appealsrefused three requests from the state for a stay. The state isnow asking the U.S. Supreme Court to put the ruling on hold.

Early on Jan. 2, Smay said he would remove Fowler's and Winburn'snames only when "we have someone else to substitute in."

"In the meantime, there is no requirement that we take her nameoff," he said.

"A lawyer should not act on behalf of a person without having beenengaged by that person or authorized by a court" to represent himor her, said Mr. Burke, who is general counsel at Ray Quinney &Nebeker and handles professional ethics for the law firm. "Hecan't just assume consent. He needs actual consent and authorityto act on their behalf."

WAL-MART STORES: Judge Sends Class Action Back to Pa. State Court-----------------------------------------------------------------Lance Duroni, Kelly Knaub and Ama Sarfo, writing for Law360,report that a Pennsylvania federal judge on Dec. 30 shipped backto state court a proposed class action accusing Wal-Mart StoresInc. of overcharging sales tax on coupon purchases, sayingprinciples of comity bar the district court from interfering withthe collection of state taxes.

In a 12-page opinion, U.S. District Judge Mark R. Hornak grantedlead plaintiff Brian Farneth's motion to remand the case anddenied Wal-Mart's competing motion to stay the suit, which theretail giant had removed to federal court under the Class ActionFairness Act.

Citing principles of comity enshrined in the Tax Injunction Act,which prohibit the district courts from intervening in state taxlaw matters when a state court could handle the issues quickly andefficiently, Judge Hornak noted that the case involves theinterpretation of Pennsylvania tax regulations over which thestate has "wide regulatory latitude."

Moreover, the state law claims asserted in the complaint do notimplicate a federal right or a defense under federal law,according to the opinion.

"Pennsylvania courts are simply better positioned than this courtto ascertain and then correct any violation of state taxcollection laws -- they are presumably more familiar with theadministration of Pennsylvania tax regulations and are whollyunburdened by the TIA's limitations in fashioning proper andcomplete remedies," Judge Hornak said. "Taken together, theseconsiderations counsel deference to the state adjudicativeprocesses."

Mr. Farneth sued Wal-Mart in July, claiming the store charged himsales tax on a can of shaving gel he received for free while usinga buy-one, get-one-free coupon, in violation of state law.

The proposed class includes individuals who purchased items fromPennsylvania Wal-Mart stores from June 2007 to the present, usedbuy-one, get-one-free discounts, store coupons or manufacturer'scoupons, and were charged or paid sales tax on the originalpurchase price.

In its defense, Wal-Mart cited a 2005 staff opinion letter fromthe Pennsylvania Department of Revenue that allegedly advised theretail giant that it is not allowed to deduct manufacturer'scoupons before calculating sales tax, effectively validating itsmethods, according to court documents.

Wal-Mart also argued that the case should be stayed under theprimary jurisdiction doctrine until Pennsylvania tax authoritieshand down an administrative decision on the relevant taxregulation.

But Judge Hornak found that this argument further supportedremanding the case, pointing out that Wal-Mart is backing a statelaw remedy to the dispute through the administrative process. Healso noted that a state court just as easily could consider thecompany's motion to stay the case.

"By the central tenet of its motion, Wal-Mart necessarilydemonstrates that it believes that Pennsylvania law andproceedings supply an adequate (and most appropriate) remedyavailable for the adjudication of the relevant claims anddefenses," Judge Hornak said.

The case is Brian Farneth v. Wal-Mart Stores Inc., case number2:13-cv-01062, in the U.S. District Court for the Western Districtof Pennsylvania.

WALTPETERICH RESTAURANT: Faces "Garcia" Suit Over Unpaid Overtime-----------------------------------------------------------------Samuel Garcia, on behalf of himself and all other employeessimilarly situated who opt-in to this civil action v. WaltpeterichRestaurant, Inc. and Shaun Clancy, Case No. 1:13-cv-09213-RA(S.D.N.Y., December 31, 2013) is brought pursuant to the FairLabor Standards Act to remedy the Defendants' alleged failure topay wages and overtime compensation.

Waltpeterich Restaurant, Inc. is a New York domestic corporationdoing business as Foley's NY Pub & Restaurant. Shaun Clancy is anemployer and one of the principals at the Restaurant.

WARNER MUSIC: Submits Royalty Rate Class Action Settlement----------------------------------------------------------Ed Christman, writing for Billboard, reports that The Warner MusicGroup has submitted a settlement to the class action lawsuit filedby artists who claimed they were entitled to be paid on alicensing bases instead of a royalty bases for download andmastertones.

The difference is basically whether they should be paid an artistroyalty rate that ranges from 6% to about 20%, depending on eachartist's rate, versus a licensing basis, which means splittingrevenues with the artist or paying 50% of net revenues.

WMG is offering artist who opt-in to the settlement a pool of$11.5 million, which will include about $3 million in lawyer'sfees and expenses, to all U.S. artists who signed a recordingcontract with one of its labels prior to Jan. 1, 2002. Thousandsof artists are eligible to participate in the settlement. Inmaking the settlement offer, WMG is not admitting any wrongdoing.Moreover, the settlement allows the company to sidestep the issueof whether downloads should be paid as a license.

The artists who named as plaintiffs in the settlement agreementare: Kathy Sledge-Lightfoot, Gary Wright and Ronee Blakely.

"We are pleased to have resolved this matter and believe that thisis a fair settlement for all parties," a WMG spokesman said in astatement.

In 2012, Sony Music Entertainment made a settlement in a similarclass action lawsuit, agreeing to pay $8 million to Sony artists.

The WMG settlement offer covers sales during the period of Jan. 1,2009 through Dec. 31, 2012. According to the settlement, artistswho signed contracts prior to 2002 generated about $381 million inU.S. download and ringtone sales during that period.Consequently, each artist's settlement would be the pro-ratedshare of that revenue. So if an artist download and mastertonescounted for $19 million in sales during that period, the artist'ssettlement payment would be 5% of the $8.5 million pool.Settlement payment can be applied against unrecouped balances,however.

The time period for the settlement is based on the statute oflimitations and the fact that most recording contract includesclauses on how far back audits can occur, according to peoplefamiliar with the settlement.

Going forward beginning Jan. 1, 2013, artists will receive anincremental 5% of royalties, capped at 14% with a floor of 10%.That means artist who signed contracts in the early days of theindustry -- when 1% to 6% royalty payments were common -- would beincreased to the floor rate of 10% for downloads and mastertones.Meanwhile, producers with royalty points will receive the sameincremental increase on a percentage basis. So an artist with a10% rate would receive 14% rate on the wholesale revenue of a U.S.download going forward, according to the settlement, whileproducers receiving 3% would see their rate increase to 4.2%.

For foreign royalties, the rate increase would be 2.5%. But sincecontracts typically call for artist to receive, in some countries,90% of the U.S. rate, that means foreign downloads for an artistreceiving a 10% rate in the U.S. would receive 90% of 12.5%, whichequals 11.25% of wholesale.

While the settlement is now been agreed upon and submitted to thecourt by both the plaintiff and the defendant, the court stillneeds to grant preliminary approval. The class action suit wasfiled in the San Francisco federal court, which is in the NorthernDistrict of California, where Judge Richard Seeborg is presiding.

When the effective date, which is expected to be sometime inJanuary, is set, artist will have about four months to submit aclaim form. If artists opt-in, they forego their right to pursuea lawsuit on whether they should be paid on a license-basesinstead of a royalty basis. Artists, of course, can choose not toparticipate in the settlement and pursue any legal remedies attheir disposal in the dispute over whether downloads requirepayments based on a licensed rate or royalty rate.

After the claims are put in, WMG will provide a report to theclass counsel on what amounts will be paid out to each participantwithin six months, and then the class counsel and artist will have90 days to object to any of WMG's calculations.

The district immediately ordered air tests that revealed no threatto human health, Superintendent of Schools Michael Emmett said onJan. 10.

"There's no danger to kids," he said.

As a precaution, the main gym will remain closed until theasbestos can be removed over February vacation, Mr. Emmett said.Students will receive health instruction in place of physicaleducation classes during that period, he said.

"Such is life when you're dealing with a renovation project,"Mr. Emmett said. "These things come up. I would certainlybelieve this is not the last surprise we'll have over the courseof this project."

The district is in the early stages of a three-year $75 millionrenovation and reconstruction of Wethersfield High School.Students are continuing to use the building during the work.

Asbestos in the gyms is the project's latest hazardous materialsurprise. Earlier, officials found far more PCBs than expected,significantly increasing clean up costs.

Mr. Emmett says he doesn't know at this point whether the newdiscovery would hike clean up costs further.

On Jan. 8, workers were demoing the smaller gym behind the maingym and an area used for wrestling when they came across materialthey thought might be asbestos, Mr. Emmett said.

"They brought in our testing company that found the area was infact hot," he said.

The district closed the main gym on Jan. 9, ordered air testingand alerted the state Department of Health and Department ofEnergy and Environmental Protection, he said.

"They (the state) reviewed our protocol and found that ourprotocol was appropriate," Mr. Emmett said.

The air tests came back clean, he said.

The asbestos is in adhesive and filler material beneath plywoodthat was the base for the hardwood floors, Emmett said.

Clean up of the materials will begin when school lets out Feb. 14and be done in time for the students' return Feb. 24, he said.The district did a similar clean up over Christmas vacation.

Winter sports teams were already playing and practicing outsidethe gym. Boys basketball plays at Sports Medical Academy, Girlsbasketball uses the gym at Silas Deane Middle School and wrestlingis in the Wethersfield High cafeteria.

The school was originally built in the1950s and added on toseveral times. Asbestos and PCBs were commonplace in schoolconstruction until the 1970s.

The lawsuit alleges the Defendants sold the Plaintiff a dietarysupplement known as Garcinia Cambogia for $52 in a manner thatviolated the New Jersey Consumer Fraud Act and common law. ThePlaintiff contends the Defendants sold their products through a"scam" that was "carried out through misrepresentation andmaterial concealment, whose goal was to dupe consumers intopurchasing goods and services, including dietary supplements. . ."

DETAILS: Mainstays five-piece card table and chair sets, whichincludes a black padded metal folding table and four black paddedmetal folding chairs. "Made by: Dongguan Shin Din Metal & PlasticProducts Co," the company that made the chair cushions, is printedon a white label on the bottom of the chairs. They were sold atWalmart stores nationwide and online at www.walmart.com from May2013 through November 2013.

WHY: The chairs can collapse unexpectedly, posing a fall hazardand a risk of finger injury, including finger amputation.

INCIDENTS: 10 reports of injuries from collapsing chairs,including one finger amputation, three fingertip amputations,sprained or fractured fingers, and one report of a sore back.

HOW MANY: About 73,400.

FOR MORE: Call Walmart at 800-925-6278 or visit www.walmart.comand click on "Product Recalls" for more information.

CAR SEAT ADAPTER

DETAILS: Joovy's Zoom car seat adapters for strollers. Theadapters are gray with black plastic clips designed to attachinfant car seats to stroller frames. Models include 00945 forGraco, 00946 for Chicco, and 00947 for Peg Perego frames. "Joovy"and the model numbers can be found on the label at the center ofthe end bar of the adapter. They were sold from May 2012 throughAugust 2013.

WHY: Adapter clips can loosen on the stroller frame, posing a fallhazard.

FOR MORE: Call Joovy at 855-251-0759 or visit www.joovy.com, thenclick on the "Customer Service" menu at the top of the page, thenselect "Recall Information" for more information.

BICYCLES

DETAILS: 2012 Source Eleven and Source Expert Disc bicycles withSupernova Switchable Dynamo Front Hubs. The name "Specialized" isprinted on the bicycle's down tube and "Source Eleven" or "SourceExpert" are printed on the top tube. The front hubs have"www.supernova-lights.com" and one of the following model numbersprinted on them: 1207, 1208, 1226, 1227, 1228, 1241, 1254, 1263,1284 and 1344. They were sold from October 2011 to September2013.

WHY: The set screws in the front hub of the recalled bicycles canloosen and stop the front wheel from turning, posing a fallhazard.

INCIDENTS: None reported.

HOW MANY: About 173.

FOR MORE: Call Specialized Bicycle Components at 877-808-8154 orvisit www.specialized.com and click on "Safety/Recalls" at thebottom of the page for more information.

KITEBOARD BINDING

DETAILS: Cabrinha H2 Hydra series bindings for kiteboards. Thebinding mounts on the twintip style kiteboards and is used toconnect the rider by his or her feet to the board. The H2 bindingis blue and black and has dual adjusting straps with 'Cabrinha'and 'H2' on the footstrap. The product was made in June and July2013. The H2 binding comes in two sizes: standard and small. Theproduct code is KB4H2BDSL which is found on the retail packaging.They were sold from August 2013 through December 2013.

WHY: The binding can detach from its base while riding and lead toloss of control.

INCIDENTS: None reported.

HOW MANY: About 62 in the U.S. and Canada.

FOR MORE: Send an email to support@cabrinhakites.com, call PrydeGroup Americas collect at 305-591-3922, or visitwww.cabrinhakites.com and click on "Safety Alert" under theSupport tab at the top of the page for more information.

TABLES

DETAILS: Norwood Furniture science tables. The affected productsinclude item numbers NOR-PIH1027-SO for the table measuring 24inches wide by 48 inches long by 30 inches high; NOR-PIH1028-SOfor the table measuring 24 inches wide by 54 inches long by 30inches high; and NOR-PIH1029-SO for the table that's 24 incheswide by 60 inches long by 30 inches high. Consumers can locatethe item number on the underside of the tabletop which is listedwith the Commercial Furniture phone number, the OCI# and Countryof Origin: China. They were sold at www.schooloutfitters.com fromJune 2013 through September 2013.

WHY: The wooden legs can split, causing instability.

INCIDENTS: Eight reports of instability of the tables, three ofwhich are reports of the legs splitting. No reported injuries.

HOW MANY: About 655.

FOR MORE: Call School Outfitters at 866-619-1776 or visitwww.schooloutfitters.com and click on "Email Customer Service" foradditional information.

* FTC Imposes Hefty Fines on Four Diet-Supplement Makers--------------------------------------------------------FindLaw reports that as part of an initiative to curb deceptiveadvertising in the weight loss product industry, the Federal TradeCommission imposed hefty fines on four diet supplement companies.The FTC will make these funds available for refunds to consumerswho bought the products. In total, the weight-loss marketers willpay approximately $34 million for consumer redress.

A breakdown of the four companies involved and how much they'll be"forking" over:

Sensa. The marketers of the powdered food additive Sensa --who urged consumers to "sprinkle, eat, and lose weight" -- willpay $26.5 million to settle FTC charges for making unfoundedweight-loss claims and misleading endorsements. Marketersdeceptively advertised that Sensa enhances food's smell and taste,making users feel full faster, so they eat less and lose weight,without dieting, and without changing their exercise regime.

HCG Diet Direct. The marketers of HCG Diet Direct Dropsdeceptively advertised an unproven human hormone (found in humanplacenta) that has been "touted by hucksters for more than half acentury as a weight-loss treatment," according to the FTC.Marketers made false claims of rapid weight loss via YouTubevideos, product packaging, and in statements and testimonials onthe company website. The company also falsely claimed that theproduct was FDA-approved and failed to disclose that endorsers insome of the ads were compensated. But the $3.2 million judgmentagainst the HCG Diet Direct defendants was suspended due to theirinability to pay.

LeanSpa. The FTC and the state of Connecticut shut down ownerBoris Mizhen's operation, including LeanSpa and three othercompanies he controls. Mizhen used fake news websites to promoteacai berry and "colon cleanse" weight-loss products, madedeceptive weight-loss claims, and misled consumers about theactual costs of the "free" trials. LeanSpa will surrender assetstotaling an estimated $7.3 million in a partial settlement withthe FTC.

Although the FTC is doing its best to trim the false advertisingfat in the diet product industry, consumers should sprinkle somecommon sense into their diet plans. If a fad diet sounds too goodto be true, it probably is. Even on a carb-free diet, don'tforget to use your noodle.

* High-Chair-Related Injuries Up 22% Between 2003 & 2010--------------------------------------------------------Alan Mozes, writing for HealthDay News, reports that youngchildren are falling out of high chairs at alarming rates,according to a new safety study that found high chair accidentsincreased 22 percent between 2003 and 2010.

U.S. emergency rooms now attend to an average of almost 9,500 highchair-related injuries every year, a figure that equates to oneinjured infant per hour. The vast majority of incidents involvechildren under the age of 1 year.

"We know that these injuries can and do happen, but we did notexpect to see the kind of increase that we saw," said studyco-author Dr. Gary Smith, director of the Center for InjuryResearch and Policy at Nationwide Children's Hospital in Columbus,Ohio.

"Most of the injuries we're talking about, over 90 percent,involve falls with young toddlers whose center of gravity is high,near their chest, rather than near the waist as it is withadults," Dr. Smith said. "So when they fall they topple, whichmeans that 85 percent of the injuries we see are to the head andface."

Because the fall is from a seat that's higher than the traditionalchair and typically onto a hard kitchen floor, "the potential fora serious injury is real," he added. "This is something we reallyneed to look at more, so we can better understand why this seemsto be happening more frequently."

For the study, published online Dec. 9 in Clinical Pediatrics, theauthors analyzed information collected by the U.S. NationalElectronic Injury Surveillance System. The data concerned allhigh chair, booster seat, and normal chair-related injuries thatoccurred between 2003 and 2010 and involved children 3 years oldand younger.

The researchers found that high chair/booster chair injuries rosefrom 8,926 in 2003 to 10,930 by 2010.

Roughly two-thirds of high chair accidents involved children whohad been either standing or climbing in the chair just beforetheir fall, the study authors noted. The conclusion: Chairrestraints either aren't working as they should or parents are notusing them properly.

"In recent years, there have been millions of high chairs recalledbecause they do not meet current safety standards. Most of thesechairs are reasonably safe when restraint instructions arefollowed, but even so, there were 3.5 million high chairs recalledduring our study period alone," said Dr. Smith. However, evenhighly educated and informed parents aren't always fully aware ofa recall when it happens, he noted.

Still, Dr. Smith believes that a 2008 Consumer Product SafetyImprovement Act will lead to a notable drop in recalls in comingyears because it calls for independent third-party testing ofchildren's products before they're put on the market.

This could eliminate many serious head injuries, he believes.According to the study, the most frequent ER diagnosis after ahigh chair fall is a concussion or internal head injury, otherwiseknown as a "closed head injury." This type of head traumaaccounted for 37 percent of high chair injuries, and its frequencyclimbed by nearly 90 percent during the eight years studied.

Nearly six in 10 children experienced an injury to their head orneck after a high chair fall, while almost three in 10 experienceda facial injury, the study found. Injuries related to falls fromtraditional chairs were more likely to be broken bones, cuts andbruises.

For now, Dr. Smith said, the top three things parents can do toensure their child's safety: "Use the restraint, use therestraint, use the restraint!" The tray is not meant to be arestraint. Children need to be buckled in, he added.

Also, supervision is a must. Stay with your child during mealtime and make sure he or she doesn't defeat the restraint, hesaid. "Even if a chair does meet current safety standards andthe restraint is used properly, there's never 100 percent on this. . . Parents will always need to be vigilant." Also, if the highchair has wheels, lock them in place. Make sure the high chair isstable, and position it away from walls or counters that the childcan push against.

Kate Carr, president and CEO of the Washington, D.C.-based groupSafe Kids Worldwide, described the findings as a wake-up call.

"An alarming number of children under the age of 3 are seen inemergency departments," she said. "This is an important reminderfor parents and caregivers to take the time to make sure theirchildren are safe and secure in their high chairs."

But the high court's busy docket doesn't end there, with thejustices also set to consider in the new year whether suitsbrought by state attorneys general count as mass actions under theClass Action Fairness Act.

That theory, which assumes an efficient market, posits that when apublic company makes a misrepresentation, that information iscarried through the market and thus affects the company's stockprice. An investor purchasing a security is thus presumed to haverelied on that misstatement.

But the concept of an efficient market, which was widelyuncontested by economists in the 1980s, has come under significantacademic scrutiny in recent years and has been questioned byJustices Samuel Alito, Clarence Thomas, Anthony Kennedy andAntonin Scalia, who have hinted they are eager to take on itslegal implications.

Halliburton gave them that opportunity when it challenged theFifth Circuit's refusal in May to toss the case, which wasoriginally filed in 2002 by investors claiming the energy giantmisled them about key information, such as its liability inasbestos litigation. Arguing that the Fifth Circuit found noevidence Halliburton's alleged misrepresentations substantiallyaffected the market price of its stock, the company urged the highcourt to at least modify its Basic opinion.

The court's ruling has the potential to "blow up" classcertifications for SEC Rule 10b5 cases, according to BruceEricson, managing partner at Pillsbury Winthrop Shaw Pittman LLP.

If the high court overturns Basic, and if each class member isforced to prove he or she relied on the misrepresentation, classcertification will be nearly impossible, plaintiffs attorneysfear.

And the impact might be more widespread than that, affecting theuse of statistics and economic theory in other classcertifications.

Rex Heinke -- rheinke@akingump.com -- co-head of the Supreme Courtand appellate practice group at Akin Gump Strauss Hauer & FeldLLP, said the case essentially raises two questions for the court:Should the fraud on the market rule stand and allow a presumptionof reliance? And assuming there is a presumption, can a defendantprevent certification by introducing evidence that its allegedrepresentations didn't affect the price of a stock?

He expects the court to draw a line of how far the parties can getinto the merits of a case before certifying a class. Where thatline will be, however, is up in the air.

Oral arguments have been scheduled for March 5.

The plaintiffs are represented by Boies Schiller & Flexner LLP.

The defendants are represented by Baker Botts LLP.

The case is Halliburton Co. et al. v. Erica P. John Fund, casenumber 13-317, in the Supreme Court of the United States.

The "Washing Machine" Cases

A pair of cases currently being petitioned to the Supreme Courthas the potential to limit issue-based class actions and definethe scope of the court's 2013 ruling in Comcast v. Behrend in thecontext of consumer class actions.

Whirlpool Corp. and Sears Roebuck & Co. have asked the high courtto overturn rulings last summer by the Sixth and Seventh circuitsrespectively, supporting the certification of classes of washerbuyers who claim that 21 different models of Whirlpool's high-efficiency, front-loading Duet clothes washers sold since 2001contain a design defect that causes moldy odors.

The companies say consumers haven't met class certificationpredominancy requirements and that most of the alleged membersweren't harmed.

Earlier in 2013, the high court vacated the circuit courts'rulings and instructed them to reconsider the cases in light ofComcast, which held that plaintiffs in an antitrust class actionhad not shown that common issues predominated on the issue ofdamages. Both courts again upheld certification over the summer,finding that Comcast does not apply to the cases.

"The decisions of the Sixth and Seventh circuits run contrary toSupreme Court case law from Walmart to Comcast," Thompson Hine LLPpartner Brian Troyer -- Brian.Troyer@ThompsonHine.com -- said."These cases present some questions that are very much in need ofclarification by the Supreme Court, like whether it's proper tocertify a 23b3 class when damage and injury questions areindividual ones and most class members have not experienced thealleged defect."

If either of the cases is picked up by the Supreme Court, it couldbecome as important as Halliburton, attorneys say.

The Supreme Court is expected to rule on whether to take up thecases in early 2014.

The Supreme Court's ruling this year in a set of cases allegingProskauer Rose LLP and Chadbourne & Parke LLP and insurance brokerWillis Ltd. aided the $7 billion Stanford Ponzi scheme willclarify the limits of the Securities Litigation Uniform StandardsAct's preclusion of state law class actions. The 1998 law aimedto prevent shareholders from evading the tough pleading standardsof federal litigation by filing suit in state courts.Specifically, SLUSA bars state-based suits alleging fraud "inconnection with the purchase or sale" of covered securities.

Attorneys for the law firms are hoping to convince the SupremeCourt that they should not be held responsible for the lossesinvestors and insurance brokers suffered in connection with RobertAllen Stanford's $7 billion Ponzi scheme.

The plaintiffs in the case did not directly purchase SLUSA-coveredsecurities, but rather certificates of deposits backed by SLUSAsecurities, and a Texas federal judge presiding over multidistrictlitigation concerning the Ponzi scheme originally found theirclaims were precluded by SLUSA.

But the Fifth Circuit revived the lawsuits in March 2012, afterfinding they were only "tangentially related" to SLUSA-coveredsecurities trades. The firms have argued that the Second, Sixthand 11th circuits have interpreted the "in connection with"standard as more broad, holding that fraud that "coincides with"or "depends upon" SLUSA-covered securities trades should bar thesuits. They say the Fifth Circuit's standard gives plaintiffs away to avoid adhering to SLUSA.

The Supreme Court's decision is expected to resolve that circuitsplit and may end up limiting securities class actions.

"The court may choose to close the door plaintiffs use to bringthese actions to state court," Arnold & Porter LLP partner JohnMassaro -- John.Massaro@aporter.com -- said.

Another significant case being decided by the Supreme Court thisyear is Mississippi ex rel. Hood v. AU Optronics Corp., which hasthe potential to determine whether so-called parens patriaecases -- suits brought by state attorneys general to recoverdamages on behalf of consumers -- count as mass actions under theClass Action Fairness Act. A mass action tries the claims of "100or more persons."

The case up for review stems from long-running litigation accusinga group of electronics companies of fixing the price of liquidcrystal display panels. As did many other attorneys general,Mississippi's Jim Hood sued on behalf of state residents after a2006 U.S. Department of Justice investigation revealed that AUOand other LCD makers orchestrated a global conspiracy to fixprices on the displays, which are widely used in laptops, monitorsand other electronic devices.

The justices have been asked whether a mass action under CAFA mustinvolve at least 100 separate plaintiffs or if a case like thisone, which is designed to recover damages for more than 100people, can count as a mass action if the state is the only namedplaintiff.

In other words, as Mr. Herrington asked, "If it sounds like aclass action and looks like a class action, should the defendantbe able to move it to federal court?"

The outcome will determine whether defendants can forum shop orstate attorneys general will be able to keep these types of casesin their home courts, where they often face a more friendly forum.The case is being closely watched by the business community andstates like California, where the attorney general currently hassignificant power to file a claim on behalf of Californiacitizens.

The case is Mississippi ex rel. Jim Hood v. AU Optronics Corp. etal., case number 12-1036, in the Supreme Court of the UnitedStates.

Carrera v. Bayer

The Third Circuit has been asked in Carrera v. Bayer Corp. et al.to reconsider whether it should be a precondition for classcertification that plaintiffs can show they can find every classmember.

Gabriel Carrera first brought the class action in 2008, allegingthe pharmaceutical company deceptively advertised its productOne-A-Day WeightSmart by falsely claiming it enhanced metabolism.

But since Bayer doesn't sell its products directly to consumers,the Third Circuit ruled in August that a New Jersey federal judgeshouldn't have certified the class of Florida consumers allegingBayer lied about the effects of the vitamin. The panel said thatwithout adequate sales records, it would be too difficult todetermine whether consumers actually belong to the class.

"Some people are concerned that the very narrow view ofascertainability will put a heavy burden on the plaintiffs," saidAlexandra Lahav, a Joel Barlow professor of law at the Universityof Connecticut School of Law. "It's often difficult to determinewho has bought a product. Bayer doesn't have a record of all itscustomers."

The plaintiffs have said the ruling also gives an incentive tocompanies like Bayer to avoid tracking customer purchases.

Ms. Lahav said the ruling, if upheld, could make it very difficultto bring consumer class actions, especially ones with smallerinjuries that are harder to find.

Mr. Carrera has petitioned the appellate court for a rehearing enbanc.

The case is Carrera et al. v. Bayer Corp. et al, case number 12-2621, in the U.S. Court of Appeals for the Third Circuit.

* Proposed Law to Radically Overhaul Medical Malpractice System---------------------------------------------------------------Greg Bluestein and Misty Williams, writing for The AtlantaJournal-Constitution, report that there have been quiet visits todoctors' offices, expensive pitches sent to voters' doorsteps andbig money pouring in from all sides -- all over a proposal that'slikely a longshot to win legislative approval this year. At theheart of the conflict: proposed legislation that would radicallyoverhaul Georgia's medical malpractice system, moving patients'claims from the courts to a new administrative system that wouldbe the first of its kind in the country.

Supporters of Senate Bill 141 argue the changes would avoidlengthy and costly jury trials many patients simply can't afford.It would also, they say, cut down on so-called "defensivemedicine" practices, in which doctors order unnecessary medicaltests to protect themselves in case of lawsuits, that drive uphealth care costs.

"Doctors are just checking the box so they don't get sued," saidstate Sen. Brandon Beach, the Alpharetta Republican who issponsoring this legislation. "That's what we're really trying tofix. And I believe in my heart that defensive medicine is causinghealthcare costs to rise."

The bill's opponents have called it flatly unconstitutional --denying patients the right to have their complaints heard by ajury of their peers -- and warn it would actually lead to higherhealth care costs and more administrative headaches for doctors.

"It takes away the constitutional right to have your day incourt," said Elena Parent, executive director of Georgia Watch, anonprofit consumer advocacy group.

Gov. Nathan Deal isn't championing the legislation, and manyobservers don't believe it has enough support to pass this year.But that hasn't stopped both sides from mobilizing over one of themore intriguing clashes in the statehouse.

It's really a continuation of a fight that reached a climax eightyears ago, when powerful lobbies representing physicians and triallawyers warred over an overhaul of malpractice rules. Back then,newly minted Republican leaders flexed their muscles and won broadchanges that infuriated patients' advocates and delighted doctorsgroups.

Yet the courts have since dismantled key parts of the law,including a 2010 Georgia Supreme Court ruling that toppled thecrowning achievement: A $350,000 cap on jury awards in pain andsuffering cases that was ruled unconstitutional.

But if this fight teaches us anything, it's that Georgia'spolitical ground is constantly shifting. The Medical Associationof Georgia and the Georgia Trial Lawyers Association, which havefought bitterly over malpractice changes over the years, are nowunited in opposition to the plan.

The doctors' advocates and its lobbyists argue the new schemecould cost upward of $44 million to administer. And lawyers'associations warn it could block access to the courts and brandishthe recent pronouncement of former Attorney General Mike Bowers,who said the proposal had a "snowball's chance in Hades" ofpassing legal muster.

"This bill will be struck down as unconstitutional," saidBill Clark, the chief lobbyist for the trial lawyers. "Theconstitutional right to a trial by jury is one boundary theLegislature should not broach."

Opponents argue it would also dramatically increase the number ofclaims for insignificant injuries, such as lacerations and rashes,by expanding the filing standard from situations where doctors areconsidered negligent to any type of avoidable injury.

Just because there is a bad outcome for a patient doesn't mean thedoctor did something wrong that should be compensated, saidDr. Michael Greene, a family physician in Macon. Negativeoutcomes sometimes happen even with the very best of care,Dr. Greene said.

"There is no perfect treatment," he said. "I think we have to getback to reality."

Wary legislators are reluctant to pick sides on the eve of anelection-year session where leaders are likely to tread lightlyaround controversial issues. The governor said in an interviewthat the proposal is not part of his agenda, and Housepowerbrokers privately say it's not expected to be a priority inwhat's likely to be a speedy session.

The supporters, though, are rallying behind a costly and ambitiouslobbying campaign to force the issue. They've got the backing ofPatients for Fair Compensation, a nonprofit supported by businessinterests, and Bernie Marcus, the co-founder of The Home Depot.

"All eyes are on Georgia," wrote Mr. Marcus, a well-connected GOPdonor, in a recent AJC editorial. "If our legislators pass longoverdue medical malpractice reform, other states will follow suit.With Georgia's leadership, national health care costs can be cutdramatically, and both doctors and patients will get realjustice."

The boosters have paid for billboards on busy highways and mailersfeaturing Mr. Marcus' mug. They've highlighted the MedicalAssociation of Georgia's ties to the powerful MAG Mutual insurer,which also opposes it.

A quieter campaign is also well underway. Wayne Oliver, who headsPatients for Fair Compensation, has spent the last 90 daystraveling the state and meeting with hundreds of doctors to pushthe overhaul in a pre-session push to drive the agenda.

"I don't think the voters of Georgia send our Legislature toAtlanta to embrace the status quo and to do anything except torock the boat," he said. "Most legislators embrace theopportunity to be bold. And this is an opportunity."

That push is unfolding already at the statehouse, where a Senatecommittee recently held the final of five hearings on thelegislation. In a cramped Capitol room, Senate legislators heardfrom experts who offered vivid night-and-day opinions on how theproposal could transform Georgia.

Even the analysts corralled by supporters conceded that the newsystem would lead to a sharp increase in new malpractice claims,but they said they would likely cost less overall. Some alsopredicted the system would lead to improved medical outcomes byholding physicians more accountable.

"Many cases of preventable harm are being missed, and with thismore reporting of harm should occur," said Allen Kachalia, aHarvard Medical School professor who boasted of the benefits ofthe change. "By providing patients with the ability to easilyreport harm, the healthcare system should benefit immensely."

But Donald Palmisano, who heads the Medical Association ofGeorgia, said his organization deduced after a yearlong reviewthat it would be a bigger administrative headache for providersand lead to more expensive payments overall.

And then there was Frank Vandall, an Emory University legalprofessor who was nothing if not blunt in his analysis that theproposal will backfire and wind up being "enormously expensive."He urged lawmakers not to bite off more than they can chew.

"It's like blind people trying to look at an elephant," he said."They think it's 12 inches across, but they're just holding theleg."

* Wage-and-Hour Suits Up 10% in 2013, Seyfarth Lawyer Says----------------------------------------------------------Ashby Jones, writing for The Wall Street Journal, reports the 2011U.S. Supreme Court case known as Wal-Mart Stores v. Dukes has inmany ways made it harder for plaintiffs to bring successfulworkplace-discrimination class-action suits. But that hasn'tmeant that the plaintiffs' bar has stopped filing employment-related suits altogether.

To the contrary -- plaintiffs have merely switched tactics,according to employment lawyers. For starters, they're filingmore wage-and-hour litigation, accusing employers of shortchangingemployees by misclassifying them, stiffing them on overtime pay,or otherwise failing to pay what they owe.

In 2013, about 10% more wage-and-hour suits were filed than in2012, according to Gerald Maatman, a labor & employment lawyer atSeyfarth Shaw LLP in Chicago, and the editor of the annualWorkplace Class Action Litigation Report. Mr. Maatman predictedno slowdown in wage-and-hour suits heading into 2014.

"For advocates of workers, wage-and-hour is really where theaction is right now," said Mr. Maatman, who called such suits"low-hanging fruit" for plaintiffs' lawyers, partly because ofworker-friendly laws in six populous states: California, New York,New Jersey, Florida, Pennsylvania and Massachusetts.

Lawyers who work in labor and employment will also continue to runheadlong into an increasingly aggressive Equal EmploymentOpportunity Commission. As a result of the budget cuts known assequestration that went into effect for part of 2013, the EEOCfurloughed employees and froze hiring. Still, it brought in moremoney for aggrieved workers -- about $372 million -- in 2013 thanin any year in the agency's history.

Lawyers expect more of the same in 2014. "It's a virtualcertainty we're going to see an uptick in [discrimination] casesbrought by the EEOC," said Steven Pearlman --spearlman@proskauer.com -- a labor and employment lawyer atProskauer LLP in Chicago. "It's become an extremely aggressiveplayer."

Mr. Pearlman said that a recent ruling stood to make life evenmore difficult for defendant companies. The ruling, by theSeventh U.S. Circuit Court of Appeals in Chicago, dealt with a lawthat requires the EEOC to try to resolve employment disputesbefore allowing lawsuits to move forward. The three-judge panelsaid that employers cannot challenge -- and courts cannot review-- whether these efforts are adequate.

In a statement, EEOC General Counsel David Lopez hailed theruling, saying that the Seventh Circuit "carefully applied theletter of the law . . . in a way that promotes Title VII's goals,protects victims of discrimination, and preserves the EEOC'scritical law-enforcement prerogatives."

But Mr. Pearlman said the ruling means the EEOC doesn't have toengage in a very robust "conciliation" effort. "It's just goingto embolden the EEOC, further this 'shoot-first, ask-questions-later' mentality it's developed."

Other areas likely to stay hot in '14, according to Mr. Pearlman:lawsuits concerning employees' use of social media and lawsuitsfiled under the whistleblower provisions of Dodd-Frank. TheSecurities & Exchange Commission paid out $14 million in bountiesin 2013. "Big numbers beget tips, and tips turn into lawsuits andinvestigations," said Mr. Pearlman. "It's turned into a bit of alandmine for employers."

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